NEW  JERSEY  EQUITY  REPORTS. 


VOLUME    XIII. 
BEASLEY    II. 


REPORTS  OF  CASES 


ARGUED  AND  DETERMINED  IN  THL 


COURT  OF  CHANCERY, 


AND,  ON  APPEAL,  IN  THE 


COURT  OF  ERRORS  AND  APPEALS 


OF  THE 


STATE  OF   NEW  JEPSEY. 
MERCER   BEASLEY    Reporter. 

VOLUME   II. 
SECOND     EDITION. 


WITH  REFERENCES  SHOWING  WHERE  THE  CASES  HAVE  BEEN  CITED,  AW* 

FIRMED,  OVERRULED,  QUESTIONED,  LIMITED,  ETC.,  DOWN  TO  VOL. 

XXXIX,  N.  J.  LAW  REPORTS  (x  VROOM),  AND  VOL.  XXVIU, 

N.  J.  EQUITY   REPORTS    (l  STEW.),   INCLUSIVE. 


By  John  Linn,  Esq.,  of  the  Hudson  Co.  Bar. 


JERSEY   CITY: 

FREDERICK  D.  LINN  &  CO. 

1886. 


y 


JUDGES  OF  THE  COURT  OF  ERRORS  AND  APPEALS 


EX-OFFICIO  JUDGES. 

HON.  HENRY  W.  GREEN,  CHANCELLOB, 

«  EDWARD  W.  WHELPLEY, 

«  ELIAS  B.  D.  OGDEN, 

"  DANIEL  HAINES, 

«  PETER  VREDENBURGH, 

«  LUCIUS  Q.  C.  ELMER, 

«  WILLIAM  T.  CLAWSON, 

«  JOHN  VAN  DYKE. 


JUDGES  SPECIALLY  APPOINTED. 

HON.  JOHN  M.  CORNELISON, 
«     JOSEPH  L.  RISLEY, 
"     JOSHUA  SWAIN, 
"     WILLIAM  N.  WOOD, 
«     JOSEPH  COMBS, 
«     ROBERT  S.  KENNEDY. 
3 


778389 


NEW  JERSEY  REPORTS. 


LAW   REPORTS. 

COXE'S  REPORTS,          ...        1  vol. 

PENNINGTON'S  REPORTS,  .        .    2   " 

SOUTHARD'S                "  2   " 

HALSTED'S                   "  .    7   « 

GREEN'S                        "  3   " 

HARRISON'S                 "  .    4    « 

SPENCER'S                    "  1    " 

ZABRISKIE'S                 "  .    4    « 

BUTCHER'S                  "  3   « 


CHAXCERY   REPORTS. 

SAXTON'S  REPORTS,             .        .  1  vol. 

GREEN'S              "         ....  2    " 

HALSTED'S         «  4  « 

STOCKTON'S       "         .        .        .  .  3    " 

BEASLEY'S         «  2  " 

6 


A  TABLE  OF  CASES 

REPORTED  IN  THIS  VOLUME. 


A, 

Allen  v.  Board  of  Chosen  Free- 
holders of  the  County  of  Mon- 
tnouth,., ,,. ,.. 


B. 


..„  201 


154 

231 
114 
455 
267 


68 


Bacot  ads.  Durant , 

Barrickk)  v.  Trenton  Mutual 
and  Fire  Insurance  Company, 

Bartlesads.  Updyke..,,,. 

Bennet  v.  Bennet „ 

Black  v.  Shreve.., „,, 

Blair  v.  Porter , 

Board  of  Chosen  Freeiiolders  of 
the  County  of  Moo  mouth  ads. 
Allen „ 

Boston  Franklinite  Company 
v.  New  Jersey  £inc  Com- 
pany  „ .215, 

Broadway  Bank  v.  McElrath,,. 

Brooks  v.  Lewis..,,,,., , 

Brown  v.  Fuller ,.., 

Brown  v.  Lexington  and  Dan- 
ville Railroad  Company , 

Brown  ads.  W'ilson 

Bryan  ads.  Vansciver 

Bruce  v.  Gale.... 


a 

Cassidy  ads.  Huston...,,.,....,,..,  228 
Chambers  ads.  Trenton  Water 

Power  Company..., „.  199 

Chapman  v.  Hunt 370 

Chevelier  ads.  Petit „  181 

Chubb  v.  Peckham „  207 

City  of  Hudson  ads.  Watet^- 

Commissioners  of  Jersey  City,  420 

Cleveland  v.  Havens „.  101 

Coles  v.  Coles 365 

Collard  v.  Smith 43 

Condict  v.  King „.  375 


Conger  v.  Conger 286 

Conover  ads.  Schenck., .31,  220 

Cookv.  Cook 263 

Cookerow  ads.  Peer 136 

Corkendall  ads.  Cox 138 

Cox  v.  Corkendall 138 

Cox  v.  Peters 39 

Craft  v.  Executors  of  Snook 121 

Crane  ads.  FairchiW , 105 


Dennison  ads.  Orana...,,.. „..,,..  438 

Davison  v.  Davison „  246 

Douglass  ads.  La.roe...... .........  308 

Downing  ads.  Emery 59 

Dressier  ads.  Klapworth „    62 

Durant  v.  Bacot, „ 201 


E, 


Emans  v.  Wortmaa. ............  205 

Emery  v.  Downing,,,... 59 

Executors  of  Condict  v.  King...  375 
Executors  of  Holcombe  v.  Hoi- 
combe 413,  415 

Executors  of  Sc«d<ier  v.  Vanars- 

dale.... 109 

Executors  of  Snook  ads.  Craft...  12X 


F. 


Facfeler  v.  Worth  ...................  395» 

Fairchild  v.  Crane  ...............  —  105 

Fuller  ads.  Brown  ..................  271 


G. 

Gale  ads.  Bruce...,  ..  211 


Gariss  v.  Gariss. 


320 


Gaskill  v.  Sine 130,  400 


Vlll 


TABLE  OF  CASES  REPORTED. 


German      Evangelical      Dutch 

Church  of  Newark  ads.  Magie,     77 
Giveans  ads.  McMurtry 351 

H. 

Haring  v.  Kauffman 397 

Havens  v.  Cleveland 101 

Hayes  v.  Whitall 241 

Hiers  ads.  Mulford. 13 

Hill  ads.  Wilson 143 

Hoboken   Building  Association 

v.  Martin 427 

Hoboken    Land    and   Improve- 
ment Co.  ads.  Proprietors   of 

Bridges 81,  503 

Holcombe  v.  Executors  of  Hoi- 
combe 413,  415 

Hornerv.  Jobs 19 

Houselads.  McPherson 35,  299 

Hngues  ads.  Vanderhaise...244,  410 

Hunt  ads.  Chapman 370 

Hunt  v.  Hunt 161 

Huston  v.  Cassidy 228 


I. 


Industrial    School    District    v. 
Whitehead 290 


J. 


James  ads.  Matlack 126 

Jennings  v.  Jennings 38 

Jersey  City  and   Bergen   Rail- 
road Company  ads.  Zabriskie,  314 

Jobs  ads.  Horner 19 

Jones'  Executors  v.  Jones 236 


K. 


Kauffman  ads.  Haring 397 

King  ads.  Executors  of  Condict,  375 
Klapworth  v.  Dressier 62 

L. 

Laroe  v.  Douglass 308 

Lasher  ads.  Marsh 25c 

Lavalette  v.  Thompson 27-J 

Lewin  ads.  Smallwood 125: 

Lewis  ade.  Brooks 2H 

Lewis  ads.  Seymour 43i 

Lexington    and  Danville  Rail- 
road Company  ads.  Brown....  191 
Lokerson  v.  Stillwell 357J 


M. 

Magie  v.    German  Evangelical 

Dutch  Church  of  Newark 77 

Marsh  v.  Lasher 253 

Marsh  v.  Marsh 281 

Marsh  ads.  Wilson 289 

Martin  ads.  Ploboken  Building 

Association 427 

Massaker  v.  Massaker 264 

Matlack  v.  James 126 

McElrath  ads.  Broadway  Bank,     24 
McFarland  v.  Orange  and  New- 
ark Horse  Car  Railroad  Com-- 

pany 17,  561 

McKean  ads.  Wright 259 

McMurtry  v.  Giveans 351 

McPherson  v.  Housel 35,  299 

Moore  v.  Vail 295 

Morgan  ads.  Rockwell 119,  384 

Morrison    ads.    Newark    Lime 

and  Cement  Company ,  133 

Mulford  v.  Hiers...,  13 


N. 

Newark  Lime  and  Cement  Com- 
pany v.  Morrwon , 133 

New  Jersey  Franklinite  Com- 
pany ads.  New  Jersey  Zinc 
Company 322 

New  Jersey  Zinc  Company 
ads.  Boston  Franklinite  Com- 
pany.  215,  322 

New  Jersey  Zinc  Company  v. 
New  Jersey  Franklinite  Com- 
pany   322 


O. 

Oram  v.  Dennison 438 

Orange  and  Newark  Horse  Car 
Railroad  Company  ads.  Mc- 
Farland  17,  561 

Owen  v.  Owen...  ..  183 


P. 

Peckham  ads.  Chubb 207 

Peer  v.  Cookerow 136 

Pence  v.  Pence 257 

Pentz  v.  Simonson 232 

Peters  v.  Cox 39 

Petit  v.  Chevelier 181 

Porter  ads  Blair 267 

Post  v.  Stevens 293 


TABLE  OF  CASES  REPORTED. 


President,     &c.,     for     erecting        ( 
bridge  near  Trenton  v.  City 

Bridge  Co 46 

Price  v.  Sisson 169 

Proprietors  of  Bridges  v.  Hobo- 
ken  Land  and  Improvement 
Co 81,  503 

R. 

Ransom  v.  Stonington  Savings 

Bank 212 

Rockwell  v.  Morgan 119,  384 


S. 


Schenck  v.  Conover 31,  220 

Scudder  v.  Vanaradale 109 

Seymour  v.  Lewis 439 

Shreve  ads.  Black 455 

Simonson  ads.  Pentz 232 

Sine  ads.^Gaskill 130,  400 

Sisson  ads.  Price 169 

Skillman  v.  Skillman 403 

Sraallwood  v.  Lewin 123 

Smith  v.  Collard 43 

Smith  v.  Smith 164 

Snook  ads.  Craft 121 

Snover  v.  Snover 2til 

Stevens  ads.  Post 293 

Stillwell  ads.  Lokerson 357 

Stonington   Savings  Bank    ads. 

Ransom 212 

Stotesbury  v.  Vail 390 

Svkes  ads.  Williamson 182 


T. 


Thompson  ads.  Lavalette 274 

Thompson's  Administrators  ads. 

Ware 66 

Titus  ads.  Updyke 151 

Trenton  City  Bridge  Company 
ads.  President,  &c.,  for  erect- 
ing a  bridge  near  Trenton 46 

Trenton  Locomotive  and  Ma- 
chine Manufacturing  Co.  ads. 
Van  Kuren 302 


Trenton  Mutual  Life  and  Fire 
Insurance  Company  ads.  Bar- 
ricklo 154 

Trenton  Water  Pov^er  Company 
v.  Chambers 199 


U. 

Updyke  v.  Bartles 231 

Updyke  v.  Titus 151 

V. 

Vail  ads.  Moore 295 

Vail  ads.  Stotesbury 390 

Vanarsdale    ads.   Executors  of 

Scudder 109 

Vanderhaise  v.  Hugues 244,  410 

Van  Kuren  v.  Trenton  Locomo- 
tive and  Machine  Manufac- 
turing Company 302 

Vansciver  v.  Bryan 434 


w. 

Ware  v.  Thompson's   Adminis- 
trators     66 

Water  Commissioners  of  Jersey 

City  v.  City  of  Hudson 420 

Whitall  ads.  Hayes 241 

Whitehead   ads.  Indus.   School 

District 290 

Williamson  v.  Sykes 182 

Wilson  v.  Brown 277 

Wilson  v.  Hill 143 

Wilfionv.  Marsh 289 

Worth  ads.  Fackler 395 

Wright  ads.  McKeao -  259 

Y. 

Yates  v.  Yates  ... 280 


Z. 


Zahriskie   v.   Jersey   City    and 
Bergen  Railroad  Company....  314 


A  TABLE  OF  CASES 


CITED  IN  THIS  VOLUME. 


A. 

Adamsvm  v.  Armitage,  19  Ve- 

sey  416 

Ager  v.  Pool,  Dyer  371 

Aldrich  v.  Sharp,  3  Scammon 

261 225, 

Anderson  v.  Exton,  1  Smith 

177 

Andrew  v.  Southouse,  5  T.  K. 

292 

Atkinson  v.  Hiitchinson,  3  P. 

Wms.258 

Att'y-General  v.  N.  J.  R.  R. 

and  Trans.  Co.,  2  Green's  Ch. 

136 74,  319, 

Att'y-General  v.  Nichols,  16  Ve- 

sey  342  

Att'y-General  v.  Stevens,  Saxton 

369 , ~ 


B. 

Badeau  v.  Rogers,  2  Paige  209, 
Baddely  v.  Leppingwell,  3  Burr. 

15 

Bailey  v.  Burton,  8  Wend.  339, 
Bank  of  Kentucky  v.  Schuyl- 

kill,  1  Parsons  247 

Bank  of  Utica  v.   Smalley,    2 

Cowen770 

Baring  v.  Nash,  1  Vesey  &  B. 

553 

Barkerv .  Greenwood,  4  Mees.  & 

W.429 

Beals  v.  Hale,  4  Howard  U.  S. 

37 

Beaumont  v.  Reeve,  8  Queen's 

Bench  483 ~ 

Beck  v.  Burdett,  1  Paige  305.... 
Beeby  v.  Beeby,  1  Haggard  EC. 

789 

Bellows  v.  Stone,  14  New  Hamp. 

175 

Bellerjeau  v.  Ex'rs  of  Kotts,  1 

South.  359... ~ 


122 
241 

289 
211 
238 
109 

426 

318 

73 

268 

238 
272 

27 

27 

366 

174 

291 

154 

272 


..  285 


252 


311 


Benhard  v.  Darrow,  Walker  Ch. 

519 225 

Bigelow    v.    Hartford     Bridge 

Co.,  14  Conn.  565 74 

Birdsall  v.  Colie,  2  Stockt.  63...  42 
Blackler  v.  Webb,  2  P.  Wms. 

383 113 

Blakemore  v.  The  Glamorgan- 
shire Canal  Navigation  Co.,  1 

Mylne&K.154 70 

Blyer  v.  Monholland  2  Sand.  Ch. 

478 64 

Bodman  v.  Morgan,  Cary  101...  398 
Bootle  v.  Blundell,  1  Mer.  216..  266 

Bowen  v.  Lease,  5  Hill  221 291 

Boyd  v.  Hoyt,  5  Paige  65,  206, 

207,  272 
Brackett  v.  Bullard,  12  Mete. 

308 373 

Brakley  v.  Sharp,   2  Stockton 

206 444 

Bridge  v.  Bridge,  12  Beavan  385,  232 
Brooks  v.  Lord  Whitworth,  1 

Madd.  86 207 

Buckley  v.  Collier,  Sal.  114 407 

Buffar   v.   Bradford,   1   Atkyns 

220 108 

Buffum  Case,  13  New  Hamps.  14,  223 
Butchart  v.  Dresser,  4  De  Gex..  41 
Butler  v.  Straton,  3  Bro.  C.  C. 

367 US 

Butler   v.  Buckingham,  2  Jac. 

&  Walk.  412 -  234 

C. 

Cald well  v.Fulton,  31  Penn.  St. 
475 341 


Chatteris  v.  Young,   2   Russell 


183, 


..  381 


Charles  River  Bridge  v.  Warren 
Bridge,  11  Peters 526 

Cheshire  Railroad  ads.  1  Foster 
(N.  H.)  29 537 

Cbesetnan  v.  Whitmore,  23  Pick. 


231 


..  150 


11 


Xll 


TABLE  OF  CASES  CITED. 


Chetwood  v.   Brittan,   1   Green 

Ch.  438 202,  394 

Chichester  v.  Donegal,   1   Ad- 
dams  5 37 

City  Bank  v.  Bangs,  2  Paige  570,  J 
City  of  Georgetown  v.  Alexan- 
dria Canal  Co.,  12  Peters  91...  74 
Clark  v.  Henry,  2  Cowen  324...  245 
Clough  v.  Wynne,  2  Madd.  188,  122 
Colier  v.  Goner's  Ex'rs,  3  Ohio 

State  B.  369 113 

Commonwealth  v.  Ragsdale,   2 

Hen.  &  Mun.  8 225 

Cornyn  v.  Kynto,  Cro  Jac.  150,  342 
Cook  v.  Bradley,  7  Conn.  57....  154 

Cook  v.  Cook,  2  Vern.  545 178 

Cook  v.  Johnson,  1  Beasley  51..  272 
Corbettv.  Corbett,  16Vesey410,  232 
Corbit  v.  Corbit,  1  Jones'  Eq. 

114 Ill 

Corey  v.  Voorhies,  1  Green's  Ch. 

6 274 

Cornell  v.  Pierson,  4  Halst.  Ch. 

484 245 

Corning  v.  Lowerre,   6   Johns. 

Ch.  439 74,  316 

Cox  v.  Matthews,  1  Vent.  237.  444 
Craig  v.  Leslie,  3  Wheat.  563...  113 
Crane  v.  Bonnell,  1  Green's  Ch. 

264 245 

Crowder  v.  Trickier,  19  Vesey 

616 74,  316 

Crutchfield   v.   Coke,    6    J.    J. 

Marsh.  89 65 

Curtis  v.  Curtis,  2  Brown's  Ch. 

632 384 

Curtis  v.  Tyler,  9  Paige  432 64 


D. 

Darcy  v.  Blake,  2  Sch.  &  Lef. 

390 384 

Dartmouth    College    v.  Wood- 
ward, 4  Wheat.  518  49 

Davenport  v.  Hunburg,  3  Vesey 

257 178 

Davoue  v.  Fanning,  2  J.  C.  252,  230 
Del.  and  Rar.  Canal  Co.  v.  Lee, 

2  Zab.  243 200 

Demarre  v.   Driskill,  3   Black. 

115 132 

Den  v.  Allaire,  Spencer  6 108 

Den  v.  Combs,  3  Harr.  27 108 

Den  v.  Hammell,  3  Harr.  74....  230 

Den  v.  Monjoy,  2  Halst.  174 358 

Den  v.  McKnight,  6  Halst.  385,  230 
Den  v.  Pidcock,  7  Halst.  363....  211 
Den,  West  v.  Pine,  4  Wash.  C. 
C.  691 ,  ..  291 


Den  v.  Schenck,  3  Halst.  29 103 

Den  v.  Wright,  2  Halst.  175 230 

Devaucenev.  Devaucene,  1  Edw. 

272  223 

Doev.Col'lis,  4  T.  R.  299.'.'.'.'.....  177 
Donn  v.  Penny,  19  Vesey  545...  239 
Doughtonv.  Gray,  2  Stockt.323,  371 
Dorsey  v.  Campbell,  1  Bland 

363 225 

Duke  of  Chandos  v.  Talbot,  2  P. 

Wins.  371 45 

Duncan's  Heirs  v.  United  States, 

7  Peters  435 481 

Dunk  v.  Fenner,  2  Russ.  &  M. 

557 239 

Dunkley  v.  Van  Buren,  3 

Johns.  Ch.  331 65 


E. 

Eager  v.  Price,  2  Paige  333 159 

Earl  v.  Grim,  1  Johns.  Ch.  494,  122 
Eastburn  v.  Kirk,  2  Johns.  Ch. 

317 211 

Elton,  v.  Sheppard,  1    Brown's 

C.  C.  532 122 

Enfield  Toll-Bridge  Co.  v.  Hart- 
ford and  New  Haven  R.  R., 

17  Conn.  56 527 

Evans  v.  Gadbold,  6  Rich.  Eq. 

26 Ill 

Evans  v.  Salt,  6  Beav.  266 Ill 

Ex  parte  Jennings,  1  Mad.  183,     67 
Ex'rs  of  Howell   v.   Auten,   1 
Green's  Ch.  45 431 


F. 

Fanning  v.  Dunham,  5  Johns. 

Ch.  122 67 

Farmer  v.  Smith,  4  Hurls.  & 

Nor.  196 433 

Fatnam  v.  Lobach,  2  Dner  361..  30 
Fawkes  v.  Gray,  18  Vesey  131...  383 
Fenimorev.Fenimore,  2  Green's 

Ch.  296 310 

Ferguson  v.  Stewart's  Ex'rs,  14 

Ohio  141 Ill,  113 

Finley  v.  Simpson,  2  Zab.  311...  63 
Fisher  v.  The  Essex  Bank,  5 

Gray  373 31 

Fiske  v.  Cobb,  6  Gray  144 383 

Fitzgerald  v.  Caldwell,  2  Dall. 

215 270 

Fleming  v.  Telf,  27  Eng.  Law 

and  Eq.  490 433 

Fletcher  v.  Ashburner,  1  Bro. 

Ch.  Cas.  467 113 


TABLE  OF  CASES  CITED. 


Xlll 


Freeholders  of  Sussex  v.  Stra- 

der,  3  Har.  108 524,  537 

Freeman  v.  Parsley,  3  Vesey 

421 178 

Fulton  Bank  v.  Beach,  6  Wend. 

36 45 

Fulton  Bank  v.  Beach,  2  Paige 

307 rt 45 

Furman  v.  Clark,  3  Stockt.  135,  394 

G. 

Gammon  v.  Stone,  1  Vesey  339,  299 
Garey  v.  Witlingham,  1  Sim.  & 

Stu.  163 45 

Gary  v.  Ex're  of  James,  4  Dess. 

185 252 

Garretson  v.  Cole,  1  Harris  & 

John.  387 223 

Garth  v.  Baldwin,  2  Vesey  655,  174 
Gilbert  v.  Manchester  Iron  Co., 

11  Wend.  627 27 

Gittings  v.  McDermott,  2  Mylne 

&  Keen  69 Ill 

Glover  v.  Proprietors  of  Drury 

Lane,  2  Chitty  117 407 

Goodnight  v.  Stocker,  5  T.  R. 

13 238 

Graves  v.  Hicks,  11  Simons  551,  243 

Greatly  v.  Noble,  3  Mad.  49 236 

Green  v.  Crocket,  2  Dev.  &  Bat. 

Ch.  390 65 

Green  v.  Winters,  1  Johns.  Ch. 

77 32 

Greenin  v.  Hoey,  1  Stockton  137,  394 
Grey  v.  Duke  of  Northumber- 
land, 17  Vesey  281 350 

Griffiths  v.  Smith,  1  Vesey,  Jr., 

97 383 

Grubb  v.  Bavard,  2  Wallace,  Jr., 

81 ." 341 

Guion  v.  Knapp,  6  Paige  35 401 


H. 

Hack  v.  Stewart,  8  Barr  213 154 

Haltv.  Chaffee,  13  Verm.  150...  392J 
Halsey  v.  Reed,  9  Paige  446....     64 
Hampson  v.  Brandwood,  1  Mad- 
dock  381 178 

Hand  v.  Hoflman,  3  Halst.  71...  105 
Harding   v.   Glover,   18  Vesey 

248 41 

Harris  v.  Fly,  7  Paige  421 140 

Harris  v.  Ryding,  5  Mees.  &  W. 

60 342 

Harrison     v.     Owen,     1     Atk. 
520...  ..  150 


Hart  v.  Lindsay,  Walker  Cb.  72,  225 
Harvey  v.  Harvey,  2  P.  Wms. 

21 140 

Hawley  v.  James,  5  Paige  466..  176 
Hays  v.  Doane,  3  Stocku-n  84...  386 
Hazard  v.  Robinson,  3  Mason 

272 444 

Hearne  v.  Tenant,  14  Vesey  136,  399 
Heath  v.  Pery,  3  Atkyns  101....  140 
Henderson  v.  Henderson,  1 

Jones' Eq.  221 ...  Ill 

Hendrickson  v.  Decow,  Saxton 

593 383 

Henry  v.  Davis,  7  Johns.  Ch.  40,  245 
Hill  v.  Fulbrook,  Jacob's  R. 

574 368 

Holbrook  v.  Cracroft,  5  Vesey 

706 232 

Holbrook  v.  Tirrell,  9  Pick.  105,  150 
Holgate  and  wife  v.  Grantham, 

Cary  58 398 

Holloway  v.  Holloway^  5  Vesey 

399 -  111 

Homer  v.  Shelton,  2  Mete.  194..  383 
Horwood  v.  Schmedes,  12  Vesev 

311 -  137 

Horry  v.  Horry,  2  Dess.  126 180 

Howell  v.  Auten,  1  Green's  Ch. 

44 67 

Hughes  v.  Saver,  1  P.  Wms. 

534 * 109 

Hugueriin  v.  Bauly,  15  Vesey 

206 .'. 32 

Huguenin  v.  Bazeley,  15  Vesey 

180 223 

Hull  v.  Thomas,  3  Edw.  Ch.  236,  399 
Humphries  v.  Brogden,  12 

Queen's  Bench  739 342 

Hunt  v.  Dunn,  6  Stew.  &  Por. 

138 65 

Hyde  v.  Parrott,  1  P.  Wms.  1...  103 


Inhabitants  of  Upper  Alloways 
Creek  v.  String,  5  Halst.  323,  429 


J. 


Jackson  v.  Chase,  2  Johns.  87...  150 

Jackson  v.  Dutton,  3  Harring- 
ton 98 358 

Jackson  v.  Garnsey,  16  Johns. 
192 358 

Jackson  v.  Ex'rs  of  Legrange,  3 
J.  R.  199 252 

Jackson  v.  Vanderheyden,  17 
Johns.  167 234 


XIV 


TABLE  OF  CASES  CITED. 


Jeffries  v.  Williams,  5  Excheq. 

792, , 342 

Johnston  v.  Anthony,  2  Molloy 

373 207 

Johnson  v.  Baker,  6  Eng.  Com. 

Law  479 481 

Johnson  v.  Hubbell,  2  Stockton 

332 252 

Jones  v.  Morgan,  1  Bro.  C.  C. 

222 174 


K. 

Kay  v.  Doughty,  4  Blatchford 
116 478 

Kay  v.  Ex'rs  of  Kay,  3  Green's 
Ch.  495 108 

Kershaw  v.  Thompson,  4  Johns. 
609 224,  396 

Kilgour  v.  Aehcon,  5  Harr.  & 
John.  82 444 

Kimpton  v.  Eve,  2  Ves.  &  B. 
349 399 

King  y.  Whitley,  10  Paige  465,     64 

Kortright  v.  Buffalo  Commer- 
cial Bank,  20  Wend.  91 27 

Kortriglit  v.  Buffalo  Commer- 
cial Bank,  22  Wend.  348 27 


L. 

Lampman  v.  Milks,  7  Smith  507,  447 
Latham  v.  Lawrence,  6  Halst. 

325 273 

Law  v.  Ford,  2  Paige  310 41 

Lawson  v.  Morgan,  1  Price  303,  182 

Leavitt  v.  Fisher,  4  Duer  1 30 

Leaycraft  v.  Hedden,  3  Green's 

Oh.  552 233,  234 

Ledyard  v.  Butler,  9  Paige  132,  276 

Lee  v.  Cargill,  2  Stockt.  331 274 

Leech  v.  Leech,  2  Chan.  R.  100,  150 
Le  Guen  v.  Governeur  and 

Kimble,  6  Johns.  Ch.  255 478 

Leigh  v.  Norbery,  13  Vesey  340,  178 

Lepet  v.  Carter,  1  Ves.  499 140 

Le  Sage  v.  Coussmaker,  1  Esp. 

187 250 

Lewis  v.  Payn,  8  Cowen  75 150 

Lyon  v.  Mitchel,  1  Mad.  (Am. 

ed.)253 107 

Lissen  v.  Lissen,  1  P.  Wms.  502,  103 

Little  v.  Dawson,  4  Dal.  Ill 250 

Little  Miami  E.  B.  v.  Naylor, 

2  Ohio  235 70 

Livingston  v.  Livingston,  6 

Johns.  C.  497 343 

Lucas  v.  Lucas,  1  Atk.  270 407 


Ludlow  v.    Lansing,    Hopkins 

231 225,  396 

Lupton  v.  Lupton,  2  Johns.  Ch. 

614 265 

Long  Dock  Co.  v.  Mallery,  1 

Beasley  93 371 

Lord  Cranstown  v.  Johnston,  3 

Vesey  170 : „  299 

Lord  Stowell  v.  Cole,  2  Vern. 

219 137 

Loveday  v.  Hopkins,  Ambler 

273 108 

Lowndes  v.  Stone,  4  Vesey 

649 Ill 


M. 

Mann  v.  Ex'rs  of  Mann,  1  Johns. 

Ch.  231 104 

Mansion  v.  Bruckett,  9N.  Hamp. 

350  479 

Martin  v.  Dwelly,  6  Wend.  9....  234 
Marten  v.  Van  Schaick,  4  Paige 

479 41 

Mason  v.  Cake,  Breese  52 289 

McClure  v.  Purcel,  3  A.  K. 

Marsh.  61 358 

McElwain  v.  Yardley,  9  Wend. 

549 272 

McKelway  v.  Armor,  2  Stockt. 

115 202 

McKomb  v.  Kankey,  1  Bland 

363 225,  226 

McLean  v.  Longslands,  5  Vesey 

78 407 

McNeil  v.  Garrett,  1  Craig  & 

Ph.  98 399 

McRee  v.  Wilmington  and 

Raleigh  E.  R.,  2  Jones'  Law 

R.  186 95,  535 

Mercer  Mining  Co.  v.  Fremont, 

7  Cal.  318 343 

Messonierv.  Kauman,  3  Johns. 

Ch.  66 32 

Mews  v.  Mews,  15  Beavan  529,  407 
Michoud  v.  Girod,  4  Howard 

503 230 

Mickle  v.  Rambo,  Saxton  501...  401 
Middle  Bridge  Corporation  v. 

Marks,  26  Maine  R.  326 50 

Milldam  Foundry  v.  Hovey,  21 

Pick.  417 213 

Miller  v.  Ford,  1  Sazton  358 67 

Miller  v.  Miller,  Saxton  389 121 

Miller  v.  Maynwaring.  Cro.  Car. 

399 „ 150 

Miller  and  Stiger  v.  Wack,  Sax- 
ton  206 478 


TABLE  OF  CASES  CITED. 


Mills  v.  Wyman,  3  Pick.  207....  154 
Moore  v.  Lyons,  25  Wend.  144,  177 
Morehead  v.  The  Little  Miami 

R  R.,  17  Ohio  235 70 

Morgan  v.  Scheriaerhom,  1 

Paige  544 67 

Morris  v.  Timmins,  I  Beav,  411,  368 
Moseley  v.  Buker,  6  Hare  87...,  433 
Mounsey  v.  Blamire,  4  Russell 

384 Ill 

Mulford  v.  Bowen,  1  Stockt.  797,  230 

N. 

Natchbold  v.  Porter,  2  Verm. 
112 392 

Newark  Plank  Road  v.  Elmer, 
1  Stockt.  754 .,  74 

Newcomb  v.  Bonham,  1  Vernon 
8 245 

New  Ipswich  Factory  v.  Batch- 
elder,  3  N.  Hamp'190 44 

Nicholas  v.  Chamberlain,  Cro. 
Jac.  121 „.  44 

Norton  v.  Turwill,  2  P.  Wms. 
144 .,  23t> 

O. 

Gates  v.  Jackson,  2  Strange  1172,  237 

Obert  v.  Obert.  1  Beasley  423....  230 

Obert  v.  Obert,  2  Stockton  98....  230 
Odborn  v.  Governor  of  Guy's 

Hospital,  2  Strange  728 250 


P. 


Page  v.  Leapingwell,  18  Vesey 

463  122 

Palmer  v.  Fletcher,  1  Levinz 

122 444 

Palmer  v.  Fletcher,  2  Sid.  167..  444 
Parker  v.  Gerard,  Ambler  236..  366 
Paterson  v.  Paterson,  13  J.  R. 

379 252 

Patty  v.  Pease,  8  Paige  277 401 

Pearce  v.  Critchlield,  11  Vesey 

206 398 

Pedrick  v.  White,  1  Metcalf  76,  159 
Penn  v.  Lord  Baltimore,  1  Vesev, 

Sr.,  444 ."..  222 

Ferine  v.  Swaine,  1  Johns.  Ch. 

24 45 

Perrine  v.  Chesapeake  and  Del. 

Canal,  9  Howard  192 538 

Phel  ps  v.  Green,  3  Johns.  Ch. 

30(> ,_366 


Phillips    v.    Chamberlaine,     4 

Vesey  51 122 

Pierce  v.  West's  Ei'rs,  1  Peters 

C.  a  351 132 

Pickett  v.  Loggon,  5  Vesey  702,  232 
Portsmouth  Bridge  Co.,  6  Man- 
ning and  Granger  229 552 

Prescotl  v.  Parker,  4  Mass.  170,  270 
Price  v.  Lockley,  6  Beav.  180,  111 

Q. 

Quiner  v.  Marblehead  Ins.  Co., 
10  Mass.  476 ,     27. 


R. 


Ravenscroft  v.  Frisbv,  1  Collyer 

1G ." 242- 

Raynor  v.  Wilson,  6  Hill  469...  150 
Rawson's  Adm'rs  v.  Copland,  2 

Sand.  Ch.  251 64 

Read  v.  Bowers,  4  Bro.  Ch.  441,  182 
Reade  v.  Livingston,  3  Johns. 

Ch.  481 272 

Reed  v.  Consequa,  4  Wash.  C. 

C.  335 394 

Reed  v.  Hatton,  2  Mod.  25 238 

Keiley  v.  Mayer,  1  Beasley  59..  276 
Renton  v.  Chaplain,  1  Stockt.  62,  42 
Rex  v.  Windham,  Cowp.  377...  212 
Rivitre  v.  Bower,  1  Ryan  & 

Moody  24 447 

Robbins  v.  Barnes,  Hobart  131..  444 
Robbins  v.  Abrahams  and  wile, 

17 45 

Roberdeam  v.  Rous,  1  Atk.  543,  222 
Roberts  v.  Jackson,  1  Wend. 

478 481 

Roe   v.    Archbishop    of    York, 

Tonchst.  70 150- 

Rogers  v.  Stevens,  4  Halst.  Ch. 

167 27 

Rowe  v.  Adm'r*  of  Hoagland,  3 

Halsl.  Ch.  139  333: 

Runyon  v.  Groshon,    1   Boaslev 

86 29,  371 

Runyon  v.  Newark   India  Rub- 
ber Co.,  4  Zab.  467 ..  230- 


Silvage  v.  Hyde,  5  Madd.  138..  207 
Scott  v.  Gamble,  1  Stork t.  235...  230 
Scott  v.  Jackson's  Ex'rs,  1  Bibb 
277...,  ..  132 


XVI 


TABLE  OF  CASES  CITED 


Seagrave  v.  Pope,   1   De   Ger, 

McN.  &  Gor.  783 433 

Sears  v.  Jackson,  3  Stockt.  45....  232 
Sellick  v.  French,  1  Am.  Lead. 

Cases  527 270 

Sergeson  v.  Sealey,  2  Atk.  412...  163 
Shaftsbury  v.  Marlborongh,  7 

Simons  237 381 

Shannon   v.    Marsellis,    Sazton 

413 401 

Shepherd  v.  Nabors,  6  Ala.  631,  108 

Shury  v.  Piggot,  3  Buls.  339 444 

Sibley  v.  Perry,  7  Vesey  531....  1 
Simmons  v.  Simmons,  8  Simons 

22 239 

Skip  v.  Harwood,  3  Atk.  564....  399 
SI  an  n  ing  v.  Style,  3  P.  Wins. 

337 407 

Sloan  v.  Towers,  2  Green  510...  67 
Bra  art  T.Morton,  2  Queen's  B.  30,  342 
Smart  v.  Morton,  5  Ellis  and 

B.  30 342 

Smith  v.  West,  3  Johns.  Ch.  303,  132 
Sussex  Bank  v.  Baldwin,  2 

Harr.  496 357 

Button  v.  Stone,  2  Atk.  101 224 

State  Bank  v.  Evans,  3  Green 

155 ; 481 

State  v.  Norwalk  and  Danbury 

Turn.  Co.,  10  Conn.  157 71 

Stebbins   v.  Phoenix    Fire   Ins. 

Co.,  3  Paige  361 27 

Stevens  v.  Cooper,  1  Johns.  Ch. 

425 401 

Stretch   v.   Watkins,    1    Madd. 

253 122 

Stone  v.  Maule,  2  Simons  490...  109 
Stonghton  v.  Leigh,  1  Taunt. 

402 342,  389 

Stourbridge  Canal   Company  v. 

Whaley,  2  Barn.  &  Ad.  792...  538 
Stribley  v.  Hawkie,  3  Atk.  275,  223 
Stuart  v.  Kirkwall,  3  Mad.  200,  236 
Swift  v.  Eckford,  6  Paige  22 207 


T. 

Tantnm  v.  Miller,  3  Stockt.  551,  358 

Ten  Eyck  v.  Del.  and  liar.  Ca- 
nal Co.,  3  Harr.  200 200 

The  Bridge  Proprietors  ads. 
The  State,  1  Zab.  384 88 

The  Bridge  Proprietors  ads. 
The  State,  2  Zab.  593 88 

The  Chain nq ue  Co.  Bank  v. 
White,  2  Sel.  236... 272 

The  Chatanque  Co.  Bank  v. 
Eidey,  19  N.  Y.  369 272 


jThe  Fulton  Bank  v.  Beach,  2 
Paige307 125 

The  Mohawk  Bridge  Co.  v.  The 
Utica  and  Schenectady  R.  R., 
6  Paige  564 94,  526,  557 

The  Proprietors  of  Stourbridge        , 
Canal  v.  Wheely,  2    Barn.  & 
Ad.  792 92 

The  Trenton  Mut.  Life  and  Fire 
Ins.  Co.  v.  McKehvay  and 
others,  1  Beas.  133 „  160 

Thomas  v.  Hole,  Cas.  Temp. 
Talba  251 113 

Thompson  v.  The  N.  Y.  and 
Harlem  R.  R.,  3  bandf.  Ch. 
625 95,  534 

Tibbits  v.  Tibbits,  7  Paige  204,  366 

Toland  v.  Willington,  26  Conn. 
578 536 

Trenton  Banking  Co.  v.  Wood- 
ruff, 1  Green's  Ch.  132 478 

Trotter  v.  Hughes,  2  Kernan  74,     64 

Tucker  v.  The  Freeholders  of 
Burlington,  Saiton  282 71 

Turnpike  Co.  v.  Hosmer,  12 
Com.  364 71 

Turner  v.  Probyn,  1  Anstruther 
66 .' 241 

Turner  v.  Reynolds,  11  Harris 
199 342 

Turrell  v.  Tnrrell,  1  Johns.  Ch. 
391 121 


U. 


1 


United   States   v.   Appleton, 

Simmer  492 444 

United  States  v.  Cults,  1  Sum- 

ner!33 27 

United  Stales  v.  Jacob  and 

others,  11  Peters  86.  481 

Union  Bank  of  Georgetown  v. 

Laird,  2  Wheat.  390 27 

Upwell  v.  Halsey,  1  P.  Wms. 

652 .' 103 


V. 

Van   Alst  v.  Hunter,  6  Johns. 

Ch.148 480 

Van  Schoick  v.  Tiie  Del.  and 

Rar.  Canal  Co.,  Spencer  249...  200 
Van  Wagner  v.  Van  Wagner,  3 

Halst.  27 245 

Van  Winkle  v.  Van  Houten,  2 

Green  Ch.  171  ..  ..  140 


TABLE  OF  CASES  CITED. 


XVII 


Valentine  v.  Teller,  Hopkins 
422 225,  396 

Vanhook  v.  Throckmorton,  8 
Paige  33 225 

Verree  v.  Hughes,  6  Halst.  91...  289 

Vaux  v.  Henderson,  1  Jac.  & 
Walk.  338...,  ..  Ill 


w. 

Waldo  v.  Caley,  1G  Vesey  20(5...  32 
\V:ilter  v.  Hodge,  2  Swanst.  109,  407 
Wan  maker  v.  Van  Busk  irk, 

Snxton  G93 242 

Ward  v.  The  Duke  of  Northum- 
berland, 2  Anstrntlier  469. ....  207 
West  v.  Smith,  1  Green  Oh.  309,  274 

Way  v.  Toy,  18  Vesey  452 32 

Wernwag  v.  Brown,   3  Blackf. 

457 289 

West  v.  P;iige,  1  Stockt.  203...-  33 
Wetmore  v.  Dver,  1  Green  Ch. 

286 '. ..  439 

Whaley  v.  Norton,  1  Vern.484,  436 
White  v.  Ex'rs  of  Olden,  3 

Green  Ch.  343 „.  265 

Whitenack  v.  Stryker,  1  Green 

Ch.  6 163 

Wliiteueck  v.  Noe,  3  Stockt.  321,  135 


Whitney  v.  Whitney,  5  Dana 

327 386 

Whittingham  v.  Andrews,  Salk. 

255 342 

Wild  v.  Hobson,  2  Vesey  &  B. 

112 232 

Williams  *v.  Cooke,  10  Vesey 

406 137 

Williamson  v.  Field,  2  Sandf.  C. 

533 177 

Williams  v.  Llewellyn,  2  Younge 

&  J.  68 436 

Willan  v.  Willnn,  16  Vesey  216,  32 
Winans  v.  Brookfield,  2  South. 

847 : 230 

Wisely  v.  Findley,  3  Rand.  361,  366 
Wooden  v.  Morris  and  wife,  2 

Green  Ch.  65 235 

Wright  v.  Trustees  of  M.  E. 

Church,  1  Hoflman'h  Ch.  212,  111 


Y. 

Yates  v.  Compton.  2  P.  Wms. 

308 113 

Yates  v.  Hambly,  2  Atk.  306....  224 

jYoule  v.  Richards,  Saxton  534,  245 

'Yule  v.  Yule,  2  Stock.  138 121 


OA.SES 


ADJUDGED 


THE  COURT  OF  CHANCERY 


OF  THE 


STATE   OF  NEW  JERSEY. 

SPECIAL  TERM,  MARCH,  1860. 


HEXRY  "W.  GREEN,  ESQ.,  CHANCELLOR. 


JOSEPH  MULFORD  and  wife  vs.  SARAH  F.  HIERS  and 

others. 

1.  In  proceedings  for  partition,  where,  after  a  sale  of  the  premises,  the 
widow,  who  was  entitled  to  dower  therein,  had  agreed  in  writing  under 
her  hand  and  seal,  according  to  the  statutes  of  this  state,  to  accept,  in  lieu 
of  her  said  dower,  such  sum  in  gross  as  the  Chancellor  should  deem  reason- 
able, and  then  having  died  before  distribution,  it  was  held  that  the  right 
vested  in  the  widow  to  receive  a  sum   in  gross,  interest  could   not  be 
divested  by  her  death,  but  should  go  to  her  children.     Held  further,  that 
the  value  of  the  widow's  interest  should  be  ascertained  on  the  principles 
of  life  annuities. 

2.  Where  the  estate  is  ordered  to  be  sold,  and  the  widow  agrees  to 
accept  a  gross  sum  in  lieu  of  dower,  and  she  dies  before  a  sale  of  the 
premises,  her  estate  is  determined  by  her  death,  and  her  children  can 
have  no  claim  to  any  portion  of  the  proceeds  of  the  sale. 


THE  CHANCELLOR.  On  the  15th  of  January,  1857,  a  bill 
was  filed  for  the  partition  of  the  real  estate  of  Garret 
Hiers,  deceased.  Hiers  died  intestate,  leaving  him  sur- 
viving a  widow,  Sarah  F.  Hiers,  four  children,  by  the  said 
Sarah,  and  two  children,  the  issue  of  a  former  marriage. 

VOL.  IL  A  13 


14  CASES  IN  CHANCERY. 

Mulford  v.  Hiera. 

The  master  having  reported  that  a  partition  could  not  be 
made  without  great  prejudice  to  the  owners  of  the  premi- 
ses, on  the  18th  day  of  January,  1858,  by  a  decree  of  the 
court,  it  was  ordered  that  the  same  should  be  sold,  and 
that  the  master  should,  with  the  said  premises,  sell  the 
estate  in  dower  of  the  said  Sarah  F.  Hiers,  widow  of  the 
said  Garret  Hiers,  in  the  same.  In  pursuance  of  this  order, 
a  part  of  the  real  estate  was  sold  on  the  26th  and  27th  of 
March,  1858,  and  the  sale  was  confirmed  on  the  30th  of 
April  following.  The  residue  of  the  land  was  sold  on  the 
27th  of  November,  1858,  and  the  sale  confirmed  on  the  1st 
of  January,  1859.  On  the  30th  of  September,  1858,  the  wi- 
dow filed  a  consent  in  writing,  under  her  hand  and  seal,  to 
accept,  in  lieu  of  her  estate  in  dower,  such  sum  in  gross 
out  of  the  proceeds  of  the  sale  of  said  lauds  as  should  be 
deemed  by  the  Chancellor  a  just  and  reasonable  satisfac- 
tion for  such  estate  and  interest.  On  or  about  the  18th 
of  October,  1858,  the  widow  died  intestate.  On  behalf  of 
her  infant  children,  it  is  insisted  that  in  making  distribu- 
tion of  the  proceeds  of  the  sales  of  the  land,  they  are  en- 
titled to  receive  such  sum  as  may  be  deemed  a  just  and 
reasonable  satisfaction  for  the  estate  in  dower  of  their 
mother  in  the  land,  in  addition  to  their  dividends  as  heirs- 
at-lavv.  This  claim  is  resisted  by  the  children  of  Garret 
Hiers  by  his  first  marriage,  who  -insist  that,  by  the  death 
of  the  widow  prior  to  the  decree  for  distribution,  her 
interest,  as  well  in  the  proceeds  of  the  sale  as  in  the  laud 
itself,  was  determined,  and  that  the  moneys  arising  from 
the  sale  must  be  distributed  among  the  heirs  without 
regard  to  her  claim.  So  far  as  relates  to  the  proceeds  of 
the  sale  of  that  portion  of  the  laud  which  was  sold  after 
the  death  of  the  widow,  it  is  clear  that  her  children  can 
have  no  claim  in  virtue  of  her  right  of  dower.  It  is  true 
that  the  estate  in  dower  of  the  widow  was,  by  a  decree  of 
the  court,  ordered  to  be  sold,  but  in  point  of  .fact  the  estate 
was  determined  by  the  death  of  the  widow  before  the  sale. 
No  sale  of  the  dower  right  was  ever  made,  and  conse- 
quently there  are  no  proceeds  of  the  sale  which  the  wi- 


MARCH  TERM,  1860.  15 

Mulford  T.  Hieru. 

dow  could  be  entitled  to  have  invested  for  her  benefit,  or 
in  lieu  of  which  she  could  receive  a  sum  in  gross. 

But  in  regard  to  the  sales  which  were  made  and  con- 
firmed in  the  lifetime  of  the  widow,  her  children  are  en- 
titled to  receive  out  of  the  proceeds  of  the  sale  a  just 
and  reasonable  satisfaction  for  their  mother's  interest. 
Under  the  act  of  1846,  (Nix.  Dig.  576,  §  23,)  the  widow's 
dower  could  only  be  sold  in  proceedings  upon  an  applica- 
tion for  partition  upon  the  widow's  signifying  her  assent 
to  relinquish  her  dower,  by  writing  under  her  hand  and 
seal,  before  or  at  the  time  of  the  sale;  and  upon  giving 
such  assent,  she  became,  by  the  terms  of  the  act,  entitled 
to  have  one-third  of  the  proceeds  of  the  sale  invested,  un- 
der the  direction  and  control  of  the  court,  for  her  benefit 
during  life.  The  right  to  the  equivalent  is,  by  the  terms 
of  the  act,  vested  in  the  widow,  upon  her  consent  to  the 
sale.  By  the  act  of  1855,  (Nix.  Dig.  578,)  the  sale  of  the 
dower  right  may  be  made  at  the  discretion  of  the  court, 
without  the  consent  of  the  widow;  and  upon  such  sale 
being  made,  if  the  widow  consent,  in  writing,  before  making 
the  order  of  distribution,  to  accept  a  gross  sum  in  lieu  of  her 
estate,  the  statute  requires  that  the  court  shall  direct  the 
payment  of  such  sum  in  gross  out  of  the  proceeds  of  the 
sale.  The  right  of  the  widow  to  receive  such  equivalent 
becomes  vested  upon  her  filing  her  consent  to  accept  it. 
She  is  bound,  by  her  consent,  to  such  acceptance,  and  it 
is  just  that  the  obligation  should  be  mutual.  The  right 
vested  in  the  widow  to  receive  a  sum  in  gross  for  her 
estate  cannot  be  divested  by  her  death.  It  is  tantamount 
to  an  agreement  to  relinquish  her  right  to  the  estate  and 
to  the  interest  of  one-third  of  the  proceeds  for  life  for  a 
sum  certain,  not  specified  in  the  agreement,  but  rt-ferreo\ 
to  the  discretion  of  the  court,  to  be  exercised  upon  fixed 
and  well-established  principles. 

The  estate  in  dower  is  a  favorite  of  the  law,  and  as  the 
dowress  is  divested  of  her  estate  in  the  lands  by  order  of 
the  court  for  the  benefit  of  the  heirs,  it  is  just  and  equit- 
able that  the  compensation  in  gross,  which  she  agrees  to 


1$  CASES  IN  CHANCERY. 

Mulford  v.  Hiere. 

accept  in  lieu  of  her  estate,  shall  be  deemed  to  be  abso- 
lutely vested  in  her  by  her  agreement  to  accept  the  equiv- 
alent which  the  law  has  offered  to  her  acceptance.  If  the 
law  had  left  to  the  widow  her  election,  whether  or  not  to 
consent  to  a  sale  of  her  dower  upon  receiving  a  sum  in 
gross  in  lieu  of  her  estate,  and  she  had  given  such  eon- 
sent,  undoubtedly  the  widow  would  have  had  a  vested 
right  to  such  equivalent  immediately  upon  the  sale  being 
made.  That  the  law  has  deprived  her  of  her  estate  with- 
out her  consent,  and  merely  gives  her  an  election  as  to 
the  mode  of  payment,  does  not  impair  her  equitable  title 
to  the  equivalent. 

If  she  had  voluntarily  contracted  for  the  sale  of  her 
estate  for  a  fixed  sum,  her  children  would  have  been  en- 
titled to  the  benefit  of  the  contracts.  Upon  the  clearest 
principles  of  equity,  she  should  stand  in  no  worse  posi- 
tion when  her  property  has  been  sold  without  her  con- 
sent. 

But  again,  as  between  the  widow  and  the  heir,  what 
title  has  the  heir  to  this  money.  Undoubtedly,  at  the 
sale,  the  purchaser  paid  for  the  widow's  estate  what  ife 
was  then  estimated  to  be  worth. 

The  value  of  the  dower  at  that  time  was  added  to  the 
price  paid  for  the  land.  The  purchaser  has  paid  a  larger 
price  for  the  dower  than  it  has  proved  to  be  worth.  Had 
it  been  anticipated  that  the  widow  would  have  died  within 
a  year,  the  fund  now  in  court  would  be  less.  What 
title  have  the  heirs  to  this  fund?  Why  should  not  the 
estate  of  the  widow  be  entitled  to  the  price  for  which  her 
estate  was  sold?  I  entertain  no  doubt,  either  upon  the 
language  of  the  statute  or  upon  the  principles  of  equity, 
that  the  equivalent  for  the  dower  is  vested  in  the  dowress, 
and  should  go  to  her  children  in  the  distribution  of  the 
funds. 

The  value  of  the  dower  is  to  be  estimated  as  it  existed 
at  the  time  of  the  consent  given  to  accept  an  equivalent, 
and  according  to  the  principles  adopted  by  the  court  in 
ascertaining  the  value  of  dower  in  other  oases.  Such  was 


MARCH  TERM,  1860.  17 

McFarland  v.  Orange  and  Newark  Horse  Car  Railroad  Co. 

the  rule  in  the  Court  of  Chancery  of  New  York  under  a 
similar  statute,  and  I  think  (he  rule  consistent  with  jus- 
tice. It  is  to  the  interest  of  the  parties  interested  in  the 
land  that  the  widow  should  consent  to  accept  a  gross  sura 
in  lieu  of  her  dower,  rather  than  to  leave  one-third  of  the 
proceeds  looked  up  for  an  indefinite  period,  and  exposed 
to  the  hazards  of  investment.  It  is  important,  therefore, 
that  the  party  entitled  to  the  life  estate,  as  an  inducement 
to  receive  an  equivalent,  should  be  made  aware  of  the 
principles  upon  which  her  estate  is  to  be  valued,  and  the 
equivalent  ascertained,  unless,  under  special  circumstances 
rendering  such  course  inequitable,  the  value  of  the  widow's 
interest  in  the  premises  should  be  ascertained  on  the  princi- 
ples of  life  annuities,  in  accordance  with  the  practice  of  the 
court  upon  the  sale  of  infants'  lands.  There  should  be  a 
reference  to  a  master  to  ascertain  and  report,  in  accordance 
with  these  principles,  what  would  be  a  just  and  reasonable 
satisfaction  for  the  widow's  interest,  who  is  entitled  to 
receive  the  same,  and  the  shares  to  which  the  parties  are 
severally  entitled. 

CITED  .in  McLaughlin  v.  McLaughlin,  5  C.  E.  Gr.  195;  Same  case,  7  C. 
E.  Or.  512;  Miller  v.  Miller,  10  C.  E.  Gr.  365. 


OWEN    MCFARLAND    vs.  THE    ORANGE  AND    NEWARK 
HORSE  CAR  RAILROAD  COMPANY. 

1.  The  charter  of  the  defendants  contained  the  following  clause:   "The 
president  and  directors  of  said  company  be  and  they  are  hereby  author- 
ized and  invested  with  all  the  rights  and  powers  necessary  and  expedi- 
ent to  survey,  lay  out  and  construct  a  railroad  from  some  suitable  point  in 
the  township  of  Orange,  in  the  county  of  Essex,  to  some  suitable  point 
in  Orange  street,  or  some  street  north  of  said  street  or  south  of  Market 
street,  in  the  city  of  Newark." 

2.  Held — that  this  enactment  relates  not  to  the  route  but  to  the  termina* 
tion  of  the  road,  and   that  thereby  the   road   of  the  company   was  net 
excluded  from  being  located  in  or  through  Market  street. 


18  CASES  IN  CHANCERY. 

McFarland  v.  Orange  and  Newark  Horse  Car  Railroad  Co. 
This  was  a  motion  to  dissolve  an  injunction. 

Oliver  S.  Halsied,  Sr.,  for  complainant. 
Abraham  0.  ZabrisJde,  for  defendants. 

THE  CHANCELLOR.  The  whole  equity  of  the  complain- 
ant's bill  rests  upon  the  ground  that  there  was  no  authority 
for  the  location  of  the  railroad  in  or  through  Market  street, 
in  the  city  of  Newark.  If  the  company  were  authorized 
by  their  charter  to  locate  and  construct  their  road  through 
that  street,  if  its  construction  then  was  authorized  by  law,  it 
could  be  no  nuisance,  nor  was  the  injury  it  occasioned  to  the 
complainant  of  a  character  which  entitled  him  to  relief  by 
injunction. 

The  injunction  was  originally  granted  on  the  assump- 
tion that  the  charter  of  the  company,  by  necessary  impli- 
cation if  not  in  express  terms,  excluded  the  road  from 
being  located  in  or  through  Market  street.  Upon  a  care- 
ful examination  of  the  charter,  I  am  satisfied  that  there 
is  no  ground  for  that  opinion.  The  language  of  the  act 
(§  7)  is  as  follows:  "The  president  and  directors' of  the 
said  company  be  and  they  are  hereby  authorized  and  in- 
vested with  all  the  rights  and  powers  necessary  and  ex- 
pedient to  survey,  lay  out  and  construct  a  railroad  from 
some  suitable  point  in  the  township  of  Orange,  in  the 
county  of  Essex,  to  some  suitable  point  in  Orange  street, 
or  some  street  north  of  said  street  or  south  of  Market 
street,  in  the  city  of  Newark."  This  enactment  relates 
not  to  the  route,  but  to  the  termination  of  the  road.  Its 
design  was  not  to  exclude  the  line  of  the  road,  but  its 
terminus  from  the  district  included  between  Market  and 
Orange  streets.  Whether  the  language  of  the  act  be  con- 
strued to  fix  the  terminus  at  a  point  south  of  Market  street, 
or  at  some  point  in  a  street  south  of  Market,  is  immaterial. 
In  either  event  the  statute  is  complied  with.  It  appears 
by  the  answer  that  although  the  line  of  the  road  is  through 


MARCH  TERM,  1860.  19 

Homer  v.  Jobs. 

Market  street,  its  terminus  is  a  point  and  in  a  street  south  of 
Market  street. 

There  is  authority,  both  from  the  legislature  and  frora  the 
corporate  authorities  of  Newark,  to  construct  the  road  in  its 
present  location. 

The  injunction  must  be  dissolved,  with  costs. 

AFFIRMED,  2  Beas.  561. 

CITED  in  Hogencamp  v.  Patenon  Horse  E.  R.  Co.,  2  C,  E.  Gr.  84. 


SAMUEL.  H.  HORNER  vs.  JAMES  T.  JOBS. 

1.  An  injunction  staying  proceedings  in  an  ejectment  was  granted  on  a 
bill  setting  up  loss  of  title  deeds.     The  answer  denied  fully  all  knowledge 
of  deeds  alleged  to  have  been  lost. 

2.  Held — that  injunction  should  be  dissolved. 

3.  A  mere  formal  or  technical  denial  of  the  charges  of  the  bill  is  not,  as 
of  course,  sufficient  to  dissolve  an  injunction. 

4.  The  staleness  of  the  defendant's  claim,  which  he  was  enforcing  at  law, 
affords  no  ground  for  continuing  an  injunction  against  him.     It  is  the 
claim  of  the  complainant  to  which  the  equitable  defence  of  a  stale  claim  is 
applicable. 

The  motion  was  to  dissolve  the  injunction  which  had  been 
granted  on  the  filing  of  the  bill. 

Joel  Parker,  for  defendant. 

J.  F.  Randolph,  for  complainant. 

THE  CHANCELLOR.  The  complainant  claims  to  be  the 
owner  in  fee  of  a  farm,  containing  140  acres  of  land,  in 
the  county  of  Ocean.  The  farm  was  conveyed  to  Fuller 
Homer,  the  complainant's  father,  from  Peter  Sexton  and 
Sarah,  his  wife,  by  deed  bearing  date  on  the  5th  of  Jan- 
uary, 1811.  The  father  continued  in  possession  during 
his  life,  and  died  seized  in  or  about  the  year  1845,  when 
the  title  vested  by  descent  in  the  complainant,  as  his 
only  child  and  heir-at-law.  The  complainant  remained 
in  the  quiet  and  undisturbed  possession  of  the  land  until 
June,  1858,  when  the  defendant  commenced  against  him,  in 


20  CASES  IN  CHANCERY. 

'  Homer  v.  Jobs. 

the  Supreme  Court,  an  action  of  ejectment  to  recover  some 
part  or  share  of  the  premises.  The  complainant  thereupon 
filed  his  bill  of  complaint  in  this  court,  alleging  a  loss  or 
destruction  of  his  title  deeds,  praying  a  discovery  from  the 
defendant,  and  an  injunction  to  restrain  the  proceedings  at 
law.  The  defendant,  having  answered  the  bill,  asks  a  dis- 
solution of  the  injunction. 

The  answer,  so  far  as  discovery  is  sought,  is  full,  di- 
rect, and  unequivocal.  Whether  it  answers  the  whole 
equity  of  the  bill,  so  as  to  entitle  the  defendant  to  a  dis- 
solution of  the  injunction,  is  the  only  matter  of  inquiry. 
From  the  statements  of  the  bill  and  answer,  not  contro- 
verted, it  appears  that,  in  the  year  1784,  James  Sexton 
the  elder,  under  whom  both  parties  claim  title,  died  seized 
of  a  tract  of  211  acres,  including  the  farm  in  question. 
He  left  two  sons  and  four  daughters.  The  sons  divided 
the  land  between  them,  and  on  the  3d  of  June,  1803,  ex- 
ecuted mutual  releases.  Peter,  one  of  the  sons,  under 
whom  the  complainant  claims,  took  the  140  acres  now  in 
controversy,  the  residue  of  the  tract  going  to  the  other 
son.  Rebecca,  one  of  the  daughters  of  James  Sexton,  in 
the  year  1797,  married  Richard  Jobs,  and  by  him  had  one 
son,  the  defendant,  who  was  born  on  the  25th  of  August, 
1798.  She  died  in  1800,  leaving  the  defendant  her  heir- 
at-law,  to  whom  her  real  estate  descended,  subject  to  the 
estate  of  his  father,  Richard  Jobs,  as  tenant  by  the  cur- 
tesy.  The  father  survived  the  mother  fifty  years,  and 
died  on  the  20th  of  March,  1850.  In  1858  the  defendant 
commenced  his  action  of  ejectment  for  the  recovery  of  his 
mother's  interest  in  the  lands  in  question,  as  one  of  the  heirs 
of  James  Sexton,  and  prosecuted  the  same  until  restrained 
by  the  injunction  of  this  court. 

The  bill  charges,  upon  information  and  the  belief  of 
the  complainant,  that  Peter  Sexton,  before  the  convey- 
ance by  him  to  the  complainant's  father,  and  about  the 
time  of  the  division  of  the  land  between  himself  and  his 
brother,  purchased  all  the  right  of  his  sisters,  and  took 


MARCH  TERM,  1860.  21 

Horner  v.  Jobs. 

from  them,  respectively,  good  and  sufficient  titles.  The 
bill  further  charges,  that  after  the  death  of  Rebecca,  her 
husband,  Richard  Jobs,  conveyed  her  share,  all  his  own 
interest,  and  the  interest  of  his  son  (the  defendant)  to  Pe- 
ter Sexton,  in  consideration  of  $480,  with  covenants  of 
general  warranty ;  and  in  order  the  better  to  secure  Sexton, 
the  said  Richard  Jobs,  together  with  his  father,  James 
Jobs,  about  the  time  of  the  conveyance  to  Sexton,  gave 
him  a  bond  of  indemnity  against  any  claim  that  James 
Jobs,  the  present  defendant,  might  ever  set  up  against 
the  property ;  and  that,  subsequently,  James  Jobs,  the 
grandfather;  Richard  Jobs,  the  father,  and  James  S.  Jobs, 
the  defendant,  (he  acting  by  attorney,)  executed  a  deed, 
with  covenants  of  warranty,  transferring  all  their  interest 
in  the  estate  of  the  said  Rebecca  to  Peter  Sexton  ;  that 
the  defendant  afterwards  gave  to  the  grandfather  a  re- 
lease of  all  his  interest  in  the  estate;  that  the  papers  of 
the  grandfather  subsequently  came  into  the  possession  of 
the  defendant,  and  that  the  complainant  is  unable  to 
procure  the  papers  so  as  to  perfect  his  chain  of  title,  and 
cannot,  therefore  safely  go  to  trial  at  law  without  a  dis- 
covery from  the  defendant. 

These  various  charges  were  obviously  made  as  the 
ground  of  a  prayer  for  a  discovery.  They  have  been 
directly  and  explicitly  denied  by  the  answer  of  the  de- 
fendant. He  denies  that  any  deed  of  conveyance  for  the 
premises  was  ever  executed  by  his  father  or  mother,  or 
by  himself,  or  by  his  attorney ;  that  no  such  papers  were 
ever  in  his  possession  or  under  his  control  or  within  his 
knowledge.  So  far  as  the  answer  relates  to  the  defend- 
ant's own  deed  or  power  of  attorney,  or  facts  within  his 
knowledge,  it  is  a  full  answer  to  the  equity  of  the  bill. 
So  far  as  it  relates  to  the  execution  of  a  conveyance  by 
the  mother,  it  does  not  fully  answer  the  equity  of  the 
bill,  for  the  fact  is  not  within  his  knowledge.  His  mother 
died  before  the  defendant  was  two  years  o!d,  and  in  deny- 
ing the  execution  of  a  conveyance  by  her,  he  could  only 


22  CASES  IN  CHANCERY. 

Horner  v.  Jobs. 

have  spoken  as  to  his  belief,  not  from  his  knowledge.  A 
mere  formal  or  technical  denial  of  the  charges  of  the  bill 
is  not,  as  of  course,  sufficient  to  dissolve  the  injunction. 

If  the  defendant's  case  rested  upon  the  answer  above, 
or  if  there  was  any  fact  or  circumstance  in  the  case  to 
warrant  the  belief,  or  to  create  an  impression  that  the 
mother  had  conveyed  her  estate,  I  should  retain  the  in- 
junction to  the  hearing.  But  there  is  the  strongest  rea- 
son for  believing  that  ho  such  conveyance  was  ever  made. 
In  the  releases  executed  by  Peter  Sexton  and  his  brother, 
upon  the  partition  of  the  land  between  them  in  1803,  it 
is  recited  that  Peter  had  purchased  his  sister's  share  from 
her  husband.  There  is  no  suggestion  that  she  had  joined 
in  the  deed — and  this  was  some  years  subsequent  to  her 
death.  And  it  is  averred,  in  the  bill  of  complaint,  that 
the  husband  did,  after  the  death  of  the  defendant's  mo- 
ther, convey  all  his  interest  and  all  his  son's  interest  in 
his  mother's  share  of  the  estate  to  the  complainant,  with 
covenants  of  general  warranty,  and  that  at  the  same  time 
he,  with  his  father,  gave  to  Peter  Sexton  a  bond  of  in- 
demnity against  any  claim  which  the  son  might  thereafter 
make  for  the  estate  of  his  mother.  Why  this  conveyance 
with  covenants  of  warranty  from  the  husband,  and  this 
bond  of  indemnity  against  the  claim  of  the  child,  if  the 
mother  had  ever  divested  herself  of  his  estate  ? 

That  part  of  the  bill  which  seeks  to  raise  an  equity 
against  the  defendant,  upon  the  ground  that  he  received 
from  his  father  and  grandfather,  for  his  support  and  main- 
tenance, a  sum  equal  to  the  value  of  the  laud,  is  fully  met 
and  denied  by  the  answer.  If  it  were  otherwise,  and  the 
facts  were  admitted  to  be  true  as  charged,  they  would  not 
avail  to  destroy  the  defendant's  title  or  prevent  a  recovery 
in  ejectment,  whatever  equity  they  might  raise  in  favor  of 
the  complainant  for  an  account. 

Nor  will  the  fact  that  the  complainant's  title  was  on 
record  charge  the  defendants  with  a  knowledge  of  his 
title,  or  subject  him  or  his  estate  to  any  equity  in  favor 


MARCH  TERM,  1860.  23 


Horner  v.  Jobs. 


of  the  defendant,  on  the  ground  that  his  claim  was  not  earlier 
made  known  to  the  complainant,  or  sought  to  be  enforced 
against  him. 

Nor  can  the  staleness  of  the  claim,  or  the  lapse  of  time, 
or  the  statute  of  limitations,  avail  -the  complainant.  The 
defendant  is  asking  no  relief  at  the  hands  of  this  court. 
He  was  seeking  to  enforce  his  legal  rights  in  a  court  of 
law.  The  complainant  is  here,  asking  the  aid  of  this  court. 
It  is  the  claim  of  the  complainant,  not  the  title  of  the  defend- 
ant, to  which  the  equitable  defence  of  a  stale  claim  is  applica- 
ble. No  lapse  of  time  can  avail  the  complainant,  unless  it 
be  a  bar  to  the  defendant's  title  under  the  statute  of  limita- 
tions. This  defence  will  avail  the  defendant  at  law,  as  well 
as  in  equity,  and  constitutes  no  ground  for  enjoining  pro- 
ceedings at  law. 

I  find  no  ground  on  which  to  continue  the  injunction, 
nor  do  I  see,  in  any  aspect  of  the  case,  that  its  continu- 
ance can  be  of  any  avail  to  the  complainant.  He  has  had 
all  the  benefit  of  a  discovery  from  the  defendant  that  lie 
can  have.  Every  presumption  in  favor  of  his  title,  which 
he  can  have  in  this  court,  he  can  have  at  law.  The  statute 
of  limitation  will  avail  him  there  as  well  as  here,  and  a 
further  continuance  of  the  injunction  can  only  serve  to 
procrastinate  the  cause,  which  has  already  been  long  de- 
layed. 

The  injunction  should  be  dissolved,  without  costs. 


ADJUDGED  IK 


THE  COURT  OF  CHANCERY 


OP  THE 


STATE  OF  NEW  JERSEY. 

MAY  TERM,  1860. 


THE  BROADWAY  BANK  vs.  THOMAS  MCELRATH  and  others. 

1.  Shares  in  a  corporation,  whose  charter  provides  that  the  cnpital  stock 
of  the  company  shall  be  deemed  personal  estate,  and   "  be  transferable 
upon  the  books  of  the  said  corporation,"  can  be  effectually  transferred  as 
collateral  security  for  a  debt,  as  against  a  creditor  of  the  bailor,  who 
attaches  them  without  notice  of  any  transfer,  by  a  delivery  of  the  certifi- 
cates thereof,  together  with  a  blank  irrevocable  power  of  attorney  for  the 
transfer  thereof  from  the  bailor  to  the  bailee. 

2.  M.  delivered  to  the  complainants  the  certificates  of  certain  st^ck  of  a 
corporation,  accompanied  by  a  power  of  attorney  irrevocable  for  the  trans- 
fer thereof,  as  collateral  security  for  certain  of  his  notes,  and  the  renewals 
thereof.     The  charter  of  said  corporation  provided  that  its  capital  stock 
should  he  deemed  personal  estate,  and  "  be  transferable  upon  the  books  of 
Baid  corporation,"  and,  further,  "  that  books  of  transfer  of  stock  should  be 
kept,  and  should  be  evidence  of  the  ownership  of  said  stock  in  all  elec- 
tions and  other  matters  submitted  to  the  decision  of  the  stockholders  of 
Baid  corporation."     A  creditor  of  M.  then  levied  an  attachment  upon  this 
stock.     Jfel-d,  that  the  transfer  to  the  complainants  was  effectual  as  against 
Buch  attaching  creditor.  

This  case  came  on  for  final  hearing  on  the  bill,  answer, 
and  proofs.  The  facts  fully  appear  in  the  opinion  of  the 
court.  - 

24 


MA"i   TERM,  1860.  25 

Broadway  Bank  v.  McElrath. 
Gummere  and  Attorney- General,  for  complainant. 

Fan  SycJcel  and  Bcasley,  for  defendants. 

THE  CHANCELLOR.  The  property  which  forms  the  sub- 
ject of  controversy  consists  of  fifty  shares  of  the  capital 
stock  of  the  Trenton  Iron  Company,  of  the  par  value  of 
one  hundred  dollars  each,  standing  on  the  books  of  the 
company  in  the  name  of  McElrath.  On  the  second  of 
June,  1854,  the  certificate  of  the  stock,  accompanied  by  a 
power  of  attorney  irrevocable  for  the  transfer  thereof,  was 
delivered  to  the  Broadway  Bank,  as  collateral  security  on 
loan  of  four  thousand  dollars,  obtained  by  McElrath  from 
the  bank,  upon  his  individual  note,  at  four  months.  The 
loan  was  made  upon  the  agreement  of  McElrath  to  deposit 
the  stock  as  a  collateral  security  for  the  re-payment  of  the 
loan,  including  as  well  the  original  note  as  all  renewals 
thereof.  The  note  was  renewed,  and  the  accruing  interest 
paid,  from  time  to  time,  until  the  22d  of  November,  1857, 
when  the  last  renewal  was  made. 

On  the  24th  of  August,  1857,  the  Hunterdon  County 
Bank  sued  out  of  the  Supreme  Court  of  this  state,  a  writ 
of  attachment  against  the  estate  of  the  said  McElrath,  as 
a  non-resident  debtor,  by  virtue  of  which  the  stock  in 
question  was  attached  as  the  property  of  McElrath.  Judg- 
ment having  been  rendered  in  favor  of  the  plaintiff  in 
attachment,  and  also  in  favor  of  sundry  applying  creditors, 
the  auditors  in  attachment  were  proceeding  to  make  sale 
of  the  stock  in  question,  to  satisfy  those  judgments,  when 
they  were  restrained  by  an  injunction  issuing  in  this  cause. 
The  complainants  insist  that  they  have  an  equitable  lien 
upon  the  stock,  for  the  payment  of  the  debt  for  which  it  was 
hypothecated  as  security.  The  defendants  claim  that  they 
have  acquired  a  valid  title  to  the  stock  at  law  and  in  equity, 
by  virtue  of  the  attachment. 

The  stock,  irrespective  of  the  complainants,  was,  un- 
doubtedly, under  the  provisions  of  the  statute,  the  sub- 


26  CASES  IN  CHANCERY. 

Broadway  Bank  v.  McElrath. 

ject  of  attachment.  The  judgment  at  law  has  established 
the  claims  of  the  plaintiff  and  the  applying  creditors  in 
attachment.  The  validity  of  the  proceedings  under  the 
attachment,  is  not  drawn  in  question.  The  defendant's 
right  to  the  property  is  unquestioned,  except  so  far  as  it 
conflicts  with  the  prior  rights  of  the  complainants. 

By  the  fifth  section  of  the  charter  of  the  Trenton  Iron 
Company,  approved  February  16th,  1847,  (Pamph.  Laws 
61),  it  is  enacted  that  "  the  capital  stock  of  the  said  cor- 
poration shall  be  deemed  personal  estate,  and  be  transfer- 
aol?  upon  the  books  of  the  said  corporation  ;"  and  by  the 
ninth  section  of  the  charter  it  is  further  enacted  "  that 
books  of  transfer  of  stock  shall  be  kept,  and  shall  be  evi- 
dence of  the  ownership  of  said  stock  in  all  elections  and 
other  matters  submitted  to  the  decision  of  the  stockholders 
of  the  said  corporation." 

Independent  of  the  provisions  of  the  charter,  the  stock  of 
an  incorporated  company  is  deemed  personal  estate,  and  may 
be  transferred  by  a  certificate  of  stock,  accompanied  by  a 
power  of  transfer.  Angell  &  Ames  on  Corp.,  §  564. 

And  where  it  is  provided,  by  the  charter  or  by-laws,  that 
the  stock  shall  be  transferred  only  upon  the  books  of  the 
corporation,  there  is  a  decided  weight  of  authority  in  sup- 
port of  the  position  that  a  bona  fide  transfer,  by  delivery 
of  the  certificate,  is,  neverthless,  valid  as  between  vendor 
and  vendee,  that  the  equitable  title  passes  by  such  trans- 
fer, and  that  the  claim  of  the  vendee  is  good,  in  equity, 
against  the  claim  of  an  execution  or  attaching  creditor  of 
the  vendor.  Such  provision,  whether  by  charter  or  by  law, 
is  regarded  as  designed  to  protect  the  interests  of  the  cor- 
poration, and  as  applying  solely  to  the  relation  between 
the  corporation  and  its  stockholders.  Its  only  office  is 
held  to  be  equivalent  to  that  of  the  provision  contained 
in  the  ninth  section  of  the  charter  of  the  Trenton  Iron 
Company,  viz.,  "  to  afford  evidence  of  the  ownership  of 
the  stock,  in  all  elections  and  other  matters  submitted  to 
the  decision  of  the  corporation,"  including,  all  questions 


MAY  TERM,  1860.  27 

Broadway  Bank  v.  McElrath. 

as  to  the  ownership  of  the  stock  as  between  the  corpora- 
tion and  its  members.  Angell  &  Ames  on  Corp.  354  ;  Bank 
of  Utica  v.  Smalley,  2  Cowen  770  ;  Gilbert  v.  Manchester  Iron 
Co.,  11  Wend.  627;  Kortright  v.  Buffalo  Commercial  Bank, 
20  Wend.  91  ;  same  case  in  error,  22  Wend.  348  ;  Quiner  v. 
Marblehead  Insurance  Co.,  10  Mass.  476  ;  Union  Bank  of 
Georgetown  v.  Laird,  2  Wheat.  390 ;  3  Howard  513  ;  Sfc&- 
6ms  v.  Phoenix  Fire  Insurance  Co.,  3  Paige  361 ;  3  Binney 
394;  Grant  v.  Mechanics1  Bank,  15  Ser^.  <&  .R.  143;  _5«n& 
q/"  Kentucky  v.  Schuylkill  Bank,  1  Parsons  247 ;  United  States 
v.  CWfe,  1  Sumner  133. 

There  is  not  an  entire  uniformity  of  authority  upon  the 
question  whether  a  transfer  or  pledge  of  stock  as  collat- 
eral security  without  a  transfer  upon  the  lx>oks  of  the  com- 
|>any,  as  required  by  the  charter,  will  protect  the  holder 
against  the  claims  of  an  attaching  creditor,  though  the 
weight  of  authority  is  decidedly  in  favor  of  the  right  of 
the  assignee. 

It  is  the  well-settled  rule  in  New  York,  where  this  contract 
was  made,  and  where  the  contracting  parties  had  their  dom- 
icil  at  the  time  of  the  contract,  and  the  pledge  of  the  stock  by 
McElrath  to  the  bank. 

It  was  so  expressly  decided  in  this  state  long  prior  to 
the  date  of  that  contract.  Rogers  et  al.  v.  Stevens,  4  Halst. 
Ch.  167. 

So  far  as  judicial  determination  couhl  settle  the  ques- 
tion, it  was  settled  prior  to  the  pledge  of  this  stock,  both 
in  the  state  where  the  contracting  parties  had  their  domi- 
cil  and  in  the  state  where  the  corporation  whose  stock  was 
transferred  was  chartered  and  transacted  its  business.  The 
parties  to  the  contract  may  fairly  have  relied  upon  the  law, 
as  thus  settled,  for  the  protection  of  their  rights.  It  is  of 
the  utmost  importance  that  questions  so  extensively  and 
vitally  affecting  the  rights  of  the  business  community 
should  be  regarded  as  settled  by  judicial  decision,  and  not 
liable  to  be  disturbed,  except  for  the  most  cogent  reasons. 
Upon  the  faith  of  decisions  already  made  upon  this  very 


Broadway  Bank  v.  McElrath. 


point,  contracts  have  doubtless  been  entered  into  and  se- 
curities taken  to  a  very  large  amount.  Whatever  might 
be  my  conclusion  as  to  the  true  construction  of  the  stat- 
ute, were  the  question  now  for  the  first  time  agitated,  it 
•would  be  alike  unwise  and  unjust  to  overturn  or  impair 
rights  acquired  upon  the  faith  of  recognized  legal  princi- 
ples. 

I  think  it  clear,  moreover,  whatever  might  be  the  strict 
legal  interpretation  of  the  provision  in  question,  that  the 
legislature  never  designed  it  to  impair  the  validity  of  a 
transfer  of  stock,  as  between  the  parties  making  it.  It 
was  not  intended  to  intrpduce  a  new  mode  of  acquiring 
title  to  stocks,  much  less  to  operate  as  a  registry  law,  by 
furnishing  conclusive  evidence  to  the  public  of  the  own- 
ership of  the  property.  If  such  had  been  the  design,  it 
might  have  been  expected  that  the  legislature  would  have 
required  that  the  books  of  transfer  should  be  at  all  times 
open  to  public  inspection,  and  the  record,  not  in  certain  speci- 
fied cases  merely,  but  in  all  cases,  made  evidence  of  owner- 
ship. 

Nor  does  sound  policy  require  such  construction  to  be 
given  to  the  act.  The  pledge  of  stocks  as  collateral  secu- 
rity has  become  a  prevalent,  and  to  the  borrower,  espe- 
cially, an  advantageous  mode  of  effecting  loans.  In  man- 
ufacturing companies  especially,  where  the  business  of 
the  company  is  carried  on  by  the  stockholder,  and  where 
his  capital  is  mainly  or  exclusively  vested  in  the  stock, 
and  employed  in  the  active  operations  of  business,  the 
pledge  of  stocks  affords  the  most  ready  and  advantageous 
mode  of  effecting  loans  for  the  demands  of  business.  To 
require  a  transfer  of  the  stock  to  the  lender  as  security 
for  the  loan  against  the  right  of  attaching  or  execution 
creditors  will  at  once  destroy  the  value  of  the  security,  or 
compel  the  borrower  to  divest  himself  of  his  character  a.s 
corporator  to  forfeit  his  control  of  the  business  of  the  cor- 
poration, of  his  right  to  dividends,  and  of  all  his  other 
rights  as  a  stockholder  in  the  corporation.  Why  should  the 


MAY  TERM,  1860.  29 

Broadway  Bank  v.  McElrath. 

owner  of  stocks  be  deprived  of  the  privilege  of  mortgaging 
or  pledging  his  stock  for  the  security  of  a  loan,  without 
stripping  himself  of  all  his  rights  of  ownership,  more  than 
the  owner  of  any  other  property  ? 

The  objection  is,  that  it  will  open  the  door  to  fraud, 
and  deprive  an  execution  or  attaching  creditor  of  the 
means  of  ascertaining  the  real  ownership  of  the  stock. 
It  is  worthy  of  notice  that  this  clause  requiring  a  transfer 
of  stock  on  the  books  of  the  company  was  inserted  in 
numerous  charters  long  before  the  stock  was  made  the 
subject  of  execution.  But  the  objection,  as  applied  to  a 
transfer  of  stock,  is  of  less  weight  than  against  a  chattel 
mortgage,  the  chattel  remaining  in  the  hands  of  the  mort- 
gagor, which  is  held  to  be  a  valid  security.  Runyon  v.  Gro- 
tihon,  L  Beasley  86. 

The  transfer  book  is  not  the  only  evidence  of  the  own- 
ership of  stock.  The  certificate,  which  has  always  been, 
deemed  prima  facie  evidence  of  ownership,  is  the  only 
evidence  in  possession  of  the  owner,  and  where  there  has 
been  no  transfer,  is  the  only  recognized  evidence  of  title. 

It  is  urged  that  the  contract  for  the  pledge  of  this  stock 
was  executory  merely ;  that  it  does  not  purport  to  trans- 
fer the  ownership  of  the  shares,  but  simply  gives  an  au- 
thority to  transfer  upon  failing  to  pay  the  debt;  and 
hence  it  is  further  argued  that  the  stock  cannot  be  held 
as  a  pledge,  because  that  requires  a  transfer  of  possession. 
The  contract  between  the  parties  was  in  no  sense  execu- 
tory. It  was  fully  executed  according  to  the  intention  of 
the  parties.  The  absolute  ownership  of  the  stock,  it  is 
true,  was  not  transferred,  nor  was  it  intended  it  should  be. 
The  spirit  and  design  of  the  contract  was  that  the  legal 
ownership  of  the  stock  should  continue  in  McElrath ; 
that  he  should  remain  a  member  of  the  corporation,  with 
the  right  to  receive  the  dividends  upon  the  stock,  to  vote 
at  all  elections,  and  with  all  other  rights  pertaining  to  him, 
as  a  stockholder  and  member  of  the  company,  and  that 
the  bank  should  hold  the  stock  as  collateral  security  for 

VOL.  ii.  B 


30  CASES  IN  CHANCERY. 

Broadway  Bank  v.  HcElrath. 

the  payment  of  the  loan,  with  the  absolute  and  irrevoca- 
ble right  of  transferring  the  legal  ownership  upon  failure 
to  pay  the  debt.  The  same  objection  existed  in  many  of 
the  reported  cases,  where  the  right  of  the  party  holding 
the  certificate  of  stock  as  evidence  of  his  claim  was  sus- 
tained against  the  claims  of  attaching  or  execution  credit- 
ors. 3  Binney  394 ;  4  Halst.  Oh.  167. 

Such  a  certificate  annexed  to  or  accompanying  a  blank 
power  of  attorney  we  cannot  doubt,  not  only  according  to 
the  understanding  of  men  in  business,  but  upon  well-set- 
tled principles  of  law,  passes  by  delivery  an  equitable  title 
to  a  bona  fide  purchaser;  nor  can  such  purchaser  be  justly 
prevented  from  converting  his  equitable  into  a  legal  title 
by  filling  up  and  exercising  the  power,  whenever  he  is  en- 
titled to  do  so  by  the  nature  and  terms  of  the  contract 
under  which  the  certificates  were  delivered  to  him.  When 
the  stock  is  sold  absolutely  his  right  then  to  perfect  his 
title  is  immediate;  when  it  is  hypothecated,  the  right  ac- 
crues when  the  debt  meant  to  be  secured  becomes  due  and 
remains  unpaid.  Per  ACKLEY,  C.  J.,  in  Fatman  v.  Lobach, 
1  Duer  361. 

It  is  obvious,  moreover,  that  so  far  as  regards  the  legal 
ownership  of  the  stock,  if  the  transfer  upon  the  books  of 
the  company  alone  can  constitute  legal  ownership,  that 
the  contract  of  sale  is  as  fully  executed  by  delivering  the 
certificate,  with  the  power  of  immediate  transfer  on  the 
books  of  the  company,  as  by  a  formal  assignment  accom- 
panying the  certificate. 

The  holder  of  a  certificate  of  shares  of  stock,  accompa- 
nied by  an  irrevocable  power  of  attorney  to  transfer  them, 
is  the  apparent  owner,  and  when  he  is  the  holder  for  value 
without  notice  his  title  cannot  be  impeached.  Leavitt  v. 
Fisher,  4  Duer  1. 

Aside  from  the  general  principles  by  which  I  think  the 
case  must  be  controlled,  it  is  worthy  of  notice  that  the 
charter  of  the  company,  the  stock  of  which  is  here  the 
subject  of  controversy,  is  somewhat  variant  from  many  of 


MAY  TERM,  1860.  31 


Schenck  v.  Conover. 


those  which  have  formed  the  subject  of  adjudication.  In  the 
case  of  Fisher  v.  The  Essex  Bank,  5  Gray  373,  the  act  of  in- 
corporation declared  that  the  stock  of  the  bank  should  be 
transferable  only  at  its  banking-house  and  on  its  books.  The 
court  say  that  the  word  "only"  carries  an  implication  as 
strong  as  negative  words  could  make  it,  that  the  transfer 
should  be  in  no  other  mode.  It  was  not  to  prescribe  one 
mode,  leaving  others  unaffected  •  it  made  that  mode  exclu- 
sive. Thecharter  of  the  Trenton  Iron  Company  contains  no 
such  exclusive  language.  It  declares  merely  that  the  stock 
shall  be  transferable  on  the  books  of  the  company,  and  fur- 
ther provides  that  the  books  of  transfer  shall  be  evidence  of 
ownership,  as  between  the  company  and  its  stockholders.  If 
the  transfer  on  the  books  was  designed  to  be  the  only  evidence 
of  ownership,  the  latter  provision  would  seem  to  be  unneces- 
sary. 

The  right  of  the  bank  is  in  no  wise  prejudiced  by  the  fact 
that  they  appeared  as  applying  creditors  under  the  attachment, 
atid  presented  their  claim  to  the  auditors. 

The  bona  fides  of  their  claim  is  not  questioned,  and  they  are 
entitled  to  the  stock  iu  question  clear  of  the  lien  ot  the  attach- 
ment. 

Decree  accordingly. 

CITED  in  ML  Holly,  L.  &  M.  Turnpike  Co.  v.  Ferret,  2  C.  E.  Gr.  119 ; 
Hunlerdon  Co.  Bank  v.  Nassau  Bank,  2  C.  E.  Gr.  496 ;  PraU  v.  Till, 
1  Slew.  484. 


JACOB  SCHENCK  vs.  ELI  AS  H.  CONOVER  and  others. 

1.  If  the  party  appealing  from  the  final  decree  of  this  court  file  his  ap- 
peal within  ten  days  after  such  decree  with  the  clerk  of  this  court,  it  will 
prevent  issuing  process  on  such  decree  without  the  order  of  this  court  or 
of  the  Court  of  Appeals  for  that  purpose. 

2.  If  the  appeal  be  not  filed  within  the  time  above  limited  the  motion  to 
stay  execution  is  addressed  to  the  discretion  of  the  court,  and  will   b« 
granted  only  upon  good  cause  shown. 

3.  In  a  case  of  several  mortgages  to  a  large  amount  which  were  undid- 


32  CASES  IN  CHANCERY. 

Sehenck  v.  Conoyer. 

puted,  and  of  subsequent  judgments,  some  of  which  were  in  controrersy,  the 
court  will  not,  on  the  application  of  the  mortgagor,  stay  proceedings  on 
the  execution  under  the  decree  of  foreclosure,  but  will  order  the  surplus 
money  to  be  brought  into  court,  to  abide  the  result  of  the  contest  touching 
the  judgments. 

THE  CHANCELLOR.  The  defendant,  having  appealed  from 
the  final  decree  in  this  cause,  asks  an  order  to  stay  further 
proceedings  on  the  execution  issued  upon  the  decree  until  the 
hearing  of  the  appeal. 

By  rule  20,  §  2,  if  the  party  appealing  shall,  within  ten 
days  of  the  final  sentence  or  decree,  file  his  appeal  with  the 
clerk  of  this  court,  it  shall  prevent  issuing  process  on  the  said 
decree  without  the  order  of  this  court  or  of  the  Court  of  Ap- 
peals for  that  purpose. 

The  appeal  was  not  filed  within  the  time  limited  by  the 
rule,  the  writ  of  fieri  faciaa  was  regularly  issued,  and  the 
power  of  the  court  is  now  invoked  to  arrest  the  execution  of 
the  writ  in  the  hands  of  the  sheriff. 

The  application  is  to  the  sound  discretion  of  the  court.  By 
the  practice  of  the  English  court  of  equity,  as  well  as  by  the 
practice  of  this  court,  so  far  as  regulated  by  statute,  an  ap- 
peal from  a  decree  in  equity,  either  interlocutory  or  final, 
does  not  stay  proceedings  in  the  court  below  or  prevent  the 
issuing  of  process  without  a  special  order  for  that  purpose. 
Huguenin  v.  Bauly,  15  Vesey  180,  184 ;  Way  v.  Toy,  18 
Vesey  452;  Waldo  v.  Caley,  16  Vesey  206;  WiUan  v.  Wil- 
lan,  16  Vesey  216;  2  Smith's  Chan.  JR.  68. 

By  the  New  York  practice,  as  it  existed  at  and  prior  to  the 
time  of  Chancellor  Kent,  an  appeal  in  the  first  instance  oper- 
ates to  stay  proceedings  on  the  point  appealed  from  ;  and  if 
the  party  wishes  to  proceed  notwithstanding  the  appeal,  he 
must  make  application  to  the  Chancellor  for  leave  to  pro- 
ceed. Green  v.  Winter,  1  Johns.  Ch.  JR.  77  ;  JHessonier  v. 
JKauman,  3  Johns.  Ch.  R.  66. 

By  either  practice,  whether  the  party  shall  be  permitted  to 
proceed  notwithstanding  the  appeal  rests  in  the  discretion  of 
the  court. 


MAY  TERM,  I860.  33 

Schenck  T.  Conoyer. 

We  follow  the  English  practice,  except  so  far  as  it  may 
be  modified  by  statute  or  by  rule  or  established  practice  in 
this  court.  West  v.  Paige,  I  Stockt.  203. 

Independent  of  the  rule  of  this  court,  already  referred 
to,  the  complainant  would  have  been  entitled  to  his  exe- 
cution, as  of  course,  at  any  time  after  final  decree,  not- 
withstanding the  appeal.  By  the  rule,  if  the  appeal  be 
filed  within  ten  days  after  final  decree,  it  prevents  the 
issuing  of  process  without  a  special  order  for  that  pur- 
pose. If  the  appeal  be  not  filed  within  that  time  the 
execution  may  issue,  and  proceedings  thereon  will  not  be 
stayed,  except  for  good  cause  in  the  discretion  of  the  court. 
If  the  court,  in  the  exercise  of  this  discretion,  see  that,  in 
case  the  decree  should  be  reversed,  the  party  cannot  be  set 
right  again — if  the  complainant  proceeds  to  a  sale  under  his 
execution — there  is  a  strong  reason  for  a  stay  of  execution. 
If,  on  the  other  hand,  the  stay  of  execution  is  unnecessary 
to  protect  the  rights  of  the  appellant  under  the  appeal,  and 
must  operate  prejudicially  to  the  complainant,  the  court 
ought  not  to  interfere. 

The  bill  was  filed  to  foreclose  a  mortgage  given  by  the 
defendant,  Conover,  to  the  complainant.  The  mortgage 
and  the  amount  due  upon  it  are  undisputed.  There  was 
due,  at  the  date  of  the  master's  report  on  the  30th  of 
August,  1860,  upon  the  complainant's  mortgage,  $6995.07. 
There  was  due  at  the  same  time,  to  a  prior  mortgagee, 
$1717,  and  to  a  subsequent  mortgagee,  $3654.  Neither  of 
these  mortgages  is  in  controversy.  They  are  all  admitted 
to  be  just.  There  is  no  appeal  from  the  decree,  so  far  as  it 
relates  to  the  encumbrances.  The  whole  controversy  in  the 
cause  relates  to  the  validity  of  certain  judgments,  which  are 
claimed  as  liens  upon  the  mortgaged  premises  subsequent  to 
the  lien  of  the  mortgages. 

The  amount  of  undisputed  mortgage  debts  established 
by  the  decree,  including  principal  and  interest,  is  $12,- 
366.07.  The  arrears  of  interest  at  the  date  of  the  mas- 
ter's report  exceeded  $2500.  Not  a  dollar  of  interest  ap- 


34  CASES  IN  CHANCERY. 

Schenck  v.  Conover. 

pears  even  to  have  been  paid  upon  either  of  the  mortgage 
debts.  There  is  no  reason  why  the  mortgage  creditors 
should  be  longer  delayed  in  the  recovery  of  their  claims 
by  reason  of  the  appeal.  The  whole  controversy  relates  to 
the  surplus  remaining  of  the  proceeds  of  the  sale  after  the 
satisfaction  of  these  encumbrances.  The  defendant's  rights 
under  the  appeal  will  be  fully  protected  by  directing  the 
sheriff  to  bring  the  surplus  money,  if  any  there  should  be, 
after  the  payment  of  the  mortgage  debts,  into  this  court,  to 
abide  the  decision  of  the  Court  of  Appeals  and  the  further 
order  of  the  court. 

The  judgment  debts  directed  by  the  decree  to  be  paid  out 
of  the  proceeds  of  the  sale,  amount  to  $9689,  making  the 
total  encumbrance  upon  the  mortgaged  premises,  'at  the  date 
of  the  master's  report,  $22,055.07.  Should  the  decree  be 
affirmed  in  the  Court  of  Appeals,  and  these  judgments  be  sus- 
tained as  valid  encumbrances  on  the  property,  from  state- 
ments made  upon  the  argument,  there  would  seem  to  be  just 
reason  to  apprehend  that  the  proceeds  of  the  sale  will  be 
utterly  inadequate  to  satisfy  all  the  encumbrances,  and  that 
the  judgment  creditors  must  sustain  a  serious  loss.  This 
constitutes  an  objection  to  tying  up  the  fund  in  this  court. 
It  must,  however,  be  done  for  the  security  of  the  appellant, 
unless  the  judgment  creditors  will  give  adequate  security 
for  the  re-payment  of  the  amount  received  by  them  in  case 
the  decree  should  be  reversed. 

If  the  appellant  desire  it,  an  order  will  be  made  directing 
the  surplus  of  the  proceeds  of  the  sale,  after  satisfying  the 
mortgage  debts,  to  be  brought  into  court  to  abide  the  further 
order  of  the  court. 

CITED  in  FacJder  v.  Worth,  2  Bcaa.  305,, 


MAY  TERM,  1860.  35 


McPherson  y.  Housel. 


ASA   MCPHERSON  V8.   GEORGE   HOUSEL. 

1.  In  a  foreclosure  suit  the  subposna  was  returned  with  the  usual  affida- 
vit of  the  non-residence  of  the  defendant.     It  appeared  that  the  defendant 
had  separated  from  his  wife,  who  had  gone  with  her  children  to  her  father, 
the  complainant.     The  defendant,  after  boarding  in  the  county  of  Hnn- 
terdon  for  a  short  time,  left  the  state,  and  was  confined  for  crime  in  the 
penitentiary  of  Pennsylvania. 

2.  Held,  that  the  actual  domicil  of  the  wife  was  not  the  legal  domicil 
of  the  husband;  nor  could  it  be  regarded,  contrary  to  the  fact,  as  his 
actual  residence  within  the  meaning  of  the  statute  regulating  the  service 
of  process. 

B.  Van  Syckel,  for  complainant. 
G.  A.  Allen,  for  defendant. 

THE  CHANCELLOR.  Upon  a  bill  for  foreclosure,  a  final 
decree  was  made  on  the  twelfth  of  July,  1860.  On  the 
thirtieth  of  August,  upon  the  petition  of  the  defendant, 
an  order  was  made  upon  the  complainant  to  show  cause 
why  the  decree  and  all  the  proceedings  in  the  cause  sub- 
sequent to  the  filing  of  the  bill  should  not  be  set  aside 
for  illegality  and  irregularity  specified  in  the  petition,  and 
that  in  the  meantime  the  sheriff  should  refrain  from  sell- 
ing the  premises  in  pursuance  of  the  decree. 

The  first  and  most  material  ground  of  illegality  alleged 
in  the  petition  is,  that  at  the  time  the  subpoena  was  issued 
the  defendant  was  temporarily  absent  from  the  state ;  that 
his  family  resided  in  the  county  of  Hunterdon,  into  which 
the  process  issued,  and  the  subpoena  might  and  ought  to 
have  been  secured  according  to  law  ;  that  all  these  facts 
were  known  to  the  complainant,  but  that  he  caused  the 
subpoena  to  be  returned  by  the  sheriff  on  the  same  day  he 
received  it,  with  the  usual  affidavit  that  the  defendant  was 
a  non-resident,  and  that,  in  order  to  prevent  the  existence 


36  CASES  IN  CHANCERY. 

McPherson  v.  Housel. 

of  the  suit  from  coming  to  the  knowledge  of  the  defend- 
ant's agent,  the  complainant  procured  the  order  of  pub- 
lication in  the  cause  to  be  published  in  a  newspaper  pub- 
lished in  the  city  of  Trenton,  and  not  in  the  county  of 
Hunterdon,  where  the  lands  lie  and  where  the  parties  re- 
side. 

The  facts  alleged  in  the  petition  constitute  a  gross  case 
of  the  fraudulent  use  and  abuse  of  the  process  of  the 
court,  and  if  proved  would  have  required  a  prompt  and 
decisive  remedy. 

But  there  is  no  evidence  offered  by  the  defendant  in 
support  of  the  facts  alleged  in  the  petition.  Neither  the 
petition  nor  the  affidavit  annexed  is  sufficient  evidence 
of  the  charge.  The  evidence  on  the  part  of  the  complain- 
ant shows  that  the  defendant,  who  had  married  the  com- 
plainant's daughter,  had  abandoned  his  wife  and  children 
eighteen  months  prior  to  the  issue  of  the  subpoena,  but 
they  have  since  resided  with  and  been  supported  by  the 
complainant;  that  the  defendant,  for  a  short  time  before 
he  last  left  the  state,  boarded  with  a  person  by  the  name 
of  Bush,  in  the  county  of  Huuterdon,  but  that  Bush 
changed  his  place  of  residence  prior  to  the  service  of  the 
subpoena;  that  before  his  removal  the  defendant  had  left 
the  state,  and  was  confined  in  the  penitentiary  of  Penn- 
sylvania for  crime. 

It  is  clear,  upon  this  statement  of  facts,  that  the  sub- 
poena could  not  have  been  lawfully  served,  as  required  by 
the  statute,  at  the  dwelling-house  or  usual  place  of  abode 
of  the  defendant.  The  residence  of  Bush  could  in  no 
sense  be  regarded  as  his  usual  place  of  abode.  He  had 
ceased  to  board  there — he  had,  in  fact,  never  made  his 
home  where  Bush  resided  at  the  time  of  serving  the  sub- 
poena, nor  could  the  house  of  the  complainant,  where  the 
defendant's  family  resided,  be  regarded  as  his  dwelling 
place.  He  did  not  in  fact  reside  there  ;  he  had  separated 
himself  from  his  family.  It  was  neither  his  actual  nor  his 
legal  residence.  The  domicil  of  the  husband  is  prima  fa- 


MAY  TERM,  1860.  37 

McPheraon  v.  Housel. 

tie,  at  least,  the  wife's  legal  domicil  wheresoever  she  may 
be  personally  resident,  and  it  seems  that  the  citation  of 
the  wife  at  the  domicil  of  the  husband  is  sufficient  to 
found  the  jurisdiction  of  the  ecclesiastical  court  in  a  suit 

•I 

for  separation.  Chichester  v.  Donegal,  1  Addams  5 ;  Shel- 
ford  on  Marriage  and  Divorce  488. 

But  the  actual  domicil  of  the  wife  cannot  be  the  legal 
domicil  of  the  husband,  much  less  can  it  be  regarded,  con- 
trar)r  to  the  fact,  as  his  actual  residence  or  place  of  abode 
within  the  meaning  of  the  statute  regulating  the  service 
of  process.  If  the  complainant  had  caused  the  subpoena 
to  be  served  at  his  own  house  upon  the  wife  of  the  de- 
fendant, under  the  state  of  facts  proved  to  exist  in  this 
cause,  the  service  would  have  been  clearly  invalid.  The 
defendant  was  not  a  resident  of  the  state — he  was  not  per- 
sonally here — nor  had  he  any  actual  residence  or  place  of 
abode  within  the  state  between  the  issuing  of  the  sub- 
poena and  the  time  of  its  return.  The  return  of  the  snb- 
pcena,  therefore,  as  made  by  the  sheriff,  was  not  illegal, 
nor  does  the  publication  of  the  order  for  the  defendant 
to  appear,  in  a  newspaper  published  in  another  county 
from  that  in  which  the  lands  lie,  render  the  decree  illegal 
or  irregular.  The  practice  is  to  direct  the  publication  to 
be  made  in  the  county  where  the  lands  lie,  but  the  publi- 
cation in  a  different  county  does  not  conflict  with  the  stat- 
ute, and,  where  there  is  no  suggestion  of  fraud  or  unfair 
practice,  it  does  not  invalidate  the  proceedings.  The  pro- 
ceedings cannot  be  set  aside  on  the  ground  of  illegality 
or  irregularity. 

But  notwithstanding  the  regularity  of  the  proceed- 
ings, I  should  have  no  hesitation  in  opening  the  decree, 
and  admitting  the  defendant  to  answer,  if  there  was  any 
proof,  or  even  a  probability,  of  there  being  any  error  in 
the  decree.  The  petition,  which  is  signed  by  counsel, 
states,  upon  information,  that  the  decree  is  for  a  larger 
amount  than  is  actually  due.  But  the  defendant,  in  his 
affidavit,  does  not  so  state ;  the  fact  is  expressly  denied 


38  CASES  IN  CHANCERY. 


Jennings  v.  Jennings. 


by  the  complainant,  and  if  true  it  might  readily  have  been 
verified  by  the  production  of  the  papers,  or  by  oral  proof. 
The  rule  to  show  cause  must  be  discharged,  with  costs. 


JENNINGS  .vs.  JENNINGS. 

1.  To  establish  a  case  of  desertion  sufficient  to  authorize  a  divorce,  it 
should  appear  that  the  wife  left  her  husband  of  her  own  accord,  without 
his  consent  and  against  his  will,  or  that  she  obstinately  refused  to  return 
without  just  cause,  on  the  request  of  her  husband. 

2.  Desertion  cannot  be  inferred  from  the  mere  unaided  fact  that  the 
parties  do  not  live  together. 

A.  W.  Bell,  for  petitioner. 

THE  CHANCELLOE.  The  petitioner  asks  a  divorce  from 
the  bond  of  matrimony,  for  willful,  continued  and  obstinate 
desertion  on  the  part  of  the  defendant. 

The  evidence  shows  that  the  parties  were  married 
about  the  year  1851,  and  that  they  lived  together  about 
eighteen  months  or  two  years.  The  defendant  then  re- 
turned to  her  mother's  house,  where,  so  far  as  appears  by 
the  evidence,  she  still  remains.  Two  witnesses  only  have 
been  called  to  support  the  charge  of  desertion.  One  of 
them,  an  uncle  of  the  petitioner,  says  that  after  the  de- 
fendant left  her  husband's  house  he  never  saw  them  to- 
gether. He,  the  witness,  has  talked  with  her  and  her 
mother,  and  tried  to  get  her  to  come  back,  but  not  at  her 
husband's  request.  The  other  witness,  a  brother-in-law 
of  the  petitioner,  says  the  defendant  left  her  husband  and 
went  back  to  her  mother's ;  I  think  he  tried  to  get  her  to 
return  and  live  with  him,  and  she  refused  ;  I  know  that 


MAY  TERM,  1860.  39 


Cox  v.  Peters. 


lie  went  to  see  her  a  number  of  times,  and  tried  to  get  her  to 
return.  How  this  knowledge  was  acquired,  he  does  not  state. 
His  previous  statement  warrants  the  belief  that  he  did  not 
know  the  fact  of  his  own  knowledge,  but  derived  it  from  the 
statement  of  others.  This  is  the  whole  evidence  offered  in 
support  of  the  petition. 

There  is  no  evidence  whatever,  of  the  circumstances  under 
which  the  defendant  left  her  husband's  house.  For  all  that 
appears,  the  separation  may  have  been  voluntary.  The  de- 
fendant may  have  returned  to  her  mother's  house  with  the 
husband's  consent,  or  at  his  request.  The  evidence  is  by  no 
means  satisfactory,  that  the  husband  ever  asked  or  desired 
her  to  return  to  him.  To  establish  a  case  of  desertion,  it 
should  appear  that  the  wife  left  her  husband  of  her  own 
accord,  without  his  consent,  and  against  his  will,  or  that  she 
obstinately  refused  to  return,  without  just  cause,  on  the 
request  of  her  husband. 

Voluntary  separation  does  not  amount  to  desertion,  nor 
can  desertion  be  inferred  from  the  mere  unaided  fact  that  the 
parties  do  not  live  together.  Bishop  on  Marriage  and  Divorce, 
§511. 

To  decree  a  divorce  upon  evidence  so  unsatisfactory  and 
inconclusive,  would  open  the  door  to  the  grossest  abuse  in 
the  exercise  of  the  power  of  the  court. 

The  application  must  be  denied. 

CITED  in  Moores  v.  Moores,  1  C.  E.  Gr.  280 ;  Meldowny  v.  Meldowny,  12 
C.  E.  Or.  329 ;  Taylor  v.  Taylor,  1  Stew.  208. 


CHARLES  F.  Cox.  vs.  JOHN  PETERS  and  MR.  JOHNSON. 

When  a  partnership  is  dissolved  by  mutual  consent,  or  determined  by 
the  will  of  either  party,  a  Court  of  Chancery  will  not,  as  of  course,  assume 
the  control  of  the  business,  and  place  it  in  the  hands  of  a  receiver.  This 
course  will  be  taken  only  where  it  appears  necessary  to  protect  the  interest 
of  the  parties. 


40  CASES  IN  CHANCERY. 

Cox  v.  Peters. 

,  This  case  came  before  the  court  on  a  motion  to  dis- 
solve the  injunction,  which  had  been  granted  on  filing  the 
bill. 

M.  JSeasley,  of  counsel  with  complainant. 
F.  B.  Chetwood,  of  counsel  with  defendant. 

THE  CHANCELLOR.  The  defendants  ask  a  dissolution  of 
the  injunction  issued  in  this  cause,  upon  the  ground  that  the 
equity  of  the  bill  is  denied  by  the  answer. 

The  bill  charges  that  Peters,  in  violation  of  the  articles 
of  partnership,  had  failed  to  advance  the  sum  of  $5000, 
as  a  capital  for  the  firm ;  that  the  defendants  had  fraudu- 
lently combined  for  the  purpose  of  excluding  the  complain- 
ant, and  had,  in  fact,  excluded  him  from  participation  in  the 
business  of  the  firm,  and  from  receiving  his  share  of  the 
profits. 

These  charges  constitute  the  whole  equity  of  the  com- 
plainant's bill.  I  think  that  they  are  all  fully  denied  by 
the  answer,  and,  consequently,  the  injunction  must  be  dis- 
solved. 

It  is  urged,  on  the  part  of  the  complainant,  that,  upon 
the  case  made  by  the  answer,  a  receiver  must  be  appointed, 
which  will  render  the  continuance  of  the  injunction 
necessary.  By  the  articles  of  partnership,  the  business 

was  to  be  continued  "  for  the  term  of years."  The 

complainant  charges,  in  his  bill,  that  at  the  time  of  the 
agreement,  it  was  understood  that  the  partnership  should 
continue  for  a  number  of  years,  and  that  three  or  five 
years  was  suggested  as  a  proper  period  for  its  continu- 
ance ;  but  it  was  not  definitely  settled,  and  the  blank  was 
to  be  filled  thereafter.  The  defendants,  by  their  answer, 
allege  that  no  time  for  the  continuance  of  the  partner- 
ship was  suggested  or  agreed  upon  at  the  time  of  enter- 
ing into  the  agreement;  that  it  was  then  purposely  left 
in  blank,  to  be  agreed  upon  thereafter,  and  that  it  haa 


MAY  TERM,  1860.  41 


O)i  v.  Petpra. 


never  been  agreed  upon.  It  is  thereupon  insisted  that  as  the 
partnership  is  not  to  endure  for  a  time  certain,  either  party 
may  dissolve  it  at  his  pleasure ;  that  the  court  will  treat  it  as 
already  dissolved,  and  in  that  event  the  appointment  of  a 
receiver  and  the  continuance  of  the  injunction  is  a  matter  of 
course. 

It  has  been  held  that  where  either  party  had  a  right  to 
dissolve  the  partnership  upon  a  bill  filed  for  the  purpose  of 
closing  its  affairs,  the  appointment  of  a  receiver  is  a  matter 
of  course.  Law  v.  Ford,  2  Paige  310  ;  Marten  v.  Van 
Schaick,  4  Paige  479. 

The  principle  must,  I  think,  be  adopted  with  some 
qualifications.  Upon  what  principle  is  it,  if  one  dissatis- 
fied partner  chooses  to  withdraw  from  the  firm,  that  the 
entire  management  of  the  business  should  be  taken  from 
the  hands  of  other  partners  and  vested  in  a  receiver?  If 
the  other  partners  are  open  to  no  impeachment  on  the  ground 
of  integrity  or  resjwnsibility,  why  should  they  be  deprived 
of  the  control  of  their  affairs,  and  be  subject  to  the  costs  and 
charges  of  a  receiver  ? 

In  Harding  v.  Glover,  IS  Vesey  284,  the  Chancellor  said, 
"  I  have  frequently  disavowed,  as  a  principle  of  this  court, 
that  a  receiver  is  to  be  appointed  merely  on  the  ground 
of  a  dissolution  of  partnership.  There  must  be  some 
breach  of  the  duty  of  a  partner  or  of  the  contract  of  partner- 
sh  ip." 

And  in  Butchart  v.  Dresser,  4  De  Ge%,  3Iacn.  &  Gordon 
543,  cited  in  Edwards  on  Receivers  324,  it  is  said  the  author- 
ity of  a  partner  continues  after  a  dissolution  for  all  purposes 
of  winding  up,  and  it  is  only  where  he  is  exercising  unduly 
any  power  which  he  has  as  a  partner  that  the  affairs  of  the 
partnership  would  be  wound  up  under  the  direction  of  the 
court  and  u  receiver  appointed. 

The  true  principle  is  that  adopted  by  Chancellor  Wil- 
liamson, viz,,  that  where  a  partnership  is  dissolved  by 
mutual  consent,  or  determined  by  the  will  of  either  party, 
a  Court  of  Chancery  will  not,  as  of  course,  assume  the  con- 


42  CASES  IN  CHANCERY. 

Cox  v.  Peters. 

trol  of  the  business  and  place  it  in  the  hands  of  a  receiver. 
A  receiver  will  be  appointed  only  where  it  appears  necessary 
to  protect  the  interest  of  the  parties.  Renton  v.  Chaplain,  1 
Stockt.  62  ;  Birdsall  v.  Colie,  2  Stoekt.  63. 

But  admitting  the  existence  of  the  general  rule,  it  is  based 
on  the  principle  that  each  partner  has  an  equal  right  to  the 
possession  and  control  of  the  partnership  effects  and  business. 
But  by  the  article  of  partnership  between  these  parties,  the 
whole  capital  was  to  be  advanced  by  Peters,  the  business  to 
be  conducted  in  his  name,  and  owned  alone  by  him.  The  en- 
tire capital  was  in  fact  advanced  by  him.  And  whatever 
may  be  the  rights  or  claims  of  creditors  as  against  the  prop- 
erty, as  between  the  partners  themselves,  the  entire  capital 
advanced,  after  the  payment  of  debts,  belongs  to  Peters.  The 
complainant  has  no  interest  in  the  property  upon  the  dissolu- 
tion of  the  firm,  beyond  his  share  of  the  profits. 

Under  such  circumstances,  where  there  is  no  suggestion  of 
insolvency  or  irresponsibility,  and  no  proof  of  fraud,  there 
can  be  no  equity  in  wresting  the  management  of  the  property 
from  the  hands  of  the  real  owner  and  placing  it  in  the  hands 
of  a  receiver.  As  the  case  now  stands,  there  is  no  necessity 
for  the  appointment  of  a  receiver,  and  no  reason  for  the  con- 
tinuance of  the  injunction  upon  that  ground.  The  partner- 
ship still  continues,  and  upon  the  case  made  by  the  answer, 
there  is  no  ground  for  the  interference  of  the  court  with  the 
management  of  the  concerns  of  the  partnership  by  the  part- 
ners themselves.  When  a  dissolution  is  decreed,  a  receiver 
may,  if  necessary,  be  appointed. 

The  injunction  is  dissolved,  with  costs. 

CITED  in  Low  v.  Holmes,  2  0.  E.  Gr.  152;  Randall  v.  Morrell,  Id.  346; 
Sieghortner  v.  Weissmbom,  5  G  E.  Or.  177. 


MAY  TERM,  1860.  43 


Collard  v.  Smith. 


COLLARD  vs.  SMITH  and  wife. 

1.  The  court  will  not  extend  the  time  for  answering,  in  order  to  admit 
the  defence  of  usury. 

2.  Where  the  time  has  been  extended  by  order  of  the  court,  without 
notice  to  complainant,  the  court  will  modify  the  order,  eo  as  to  exclude 
the  defence  of  usury. 

3.  When,  after  the  time  for  answering  has  expired,  the  complainant 
grants  an  extension,  the  defence  of  usury  will  not  be  permitted  to  be  pet 
up.     Contra,  where  such  consent  is  given  before  the  defendant  is  in  laches. 

4.  Where  husband  and  wife  are  made  defendants  to  a  bill  in  equity,  the 
husband  must  appear  for  both,  and  the  complainant  is  entitled  to  a  joint 
answer. 

5.  If  the  husband  is  unable  to  put  in  a  joint  answer,  or  if  the  wife  de- 
fire  to  answer  separately,  or  the  husband  is  not  in  a  situation  to  answer 
for  her,  an  order  for  a  separate  answer  must  be  obtained. 

6.  If  either  husband  or  wife  answer  separately,  without  an  order  author- 
izing it,  such  answer  will  be  suppressed  as  irregular. 

7.  The  answer  must  not  only  be  joint,  but  must  be  sworn  to  by  the  wife, 
or  it  will  be  irregular;  but  the  irregularity  will  be  waived  by  the  com- 
plainant filing  a  replication. 

This  was  a  motion  to  suppress  answer. 

P.  D.  Vroom,  for  complainant. 
Hansom,  for  defendant. 

THE  CHANCELLOR.  The  complainant  moves  to  suppress 
the  defendant's  answer.  First,  on  the  ground  that  it  sets  up 
usury  as  a  defence,  and  was  filed  after  the  time  limited  by 
law,  the  time  for  answering  having  been  extended  by  the 
assent  of  the  complainant's  solicitor,  at  the  solicitation  of  the 
solicitor  of  the  defendant,  and  without  stating  the  fact  that 
usury  was  intended  to  be  set  up  as  a  defence. 

The  court  will  not  extend  the  time  for  answering,  in 
order  to  admit  the  defence  of  usury.  And  where  the 
time  has  been  extended  by  order  of  the  court,  without 
notice  to  the  complainant's  solicitor,  or  without  his  con- 
sent, the  court  will  modify  the  order,  so  as  to  exclude  the 


44  CASES  IN  CHANCERY. 

Col  lard  v.  Smith. 

defence  of  usury.  The  same  principle,  it  is  insisted,  ap- 
plies where  the  time  is  extended  by  consent  of  counsel, 
without  the  order  of  the  court.  If  the  time  for  pleading 

I  O 

had  expired  when  the  consent  for  extending  the  time  wa.s 
given,  the  defence  of  usury  would  not  be  permitted  to  be 
set  up.  It  may  be  presumed  that  the  complainant's  soli- 
citor did  not  intend  to  prejudice  his  client's  interest  by 
the  consent.  The  defendant  ought  not  to  be  permitted 
to  gain  an  advantage  by  the  indulgence  of  his  adversary. 
Had  he  applied  to  the  court  for  time,  after  the  expiration 
of  the  time  for  pleading,  he  would  not  have  been  permit- 
ted to  plead  usury.  The  consent  of  the  plaintiff's  solici- 
tor to  an  extension  of  time  should  give  no  greater  advan- 
tage. In  this  case  the  consent  was  given  before  the  time 
for  pleading  had  expired.  It  is  a  general  consent,  not 
limited  as  to  the  matter  of  the  defence.  To  deprive  the 
defendant  of  any  lawful  defence  under  these  circum- 
stances, would  prejudice  his  rights.  At  the  time  the 
consent  was  given,  he  had  a  right  to  set  up  Usury  or  any 
other  defence.  Had  the  consent  for  an  extension  not 
been  given,  the  answer  might  have  been  filed  within  the 
time  limited  by  law.  If  a  general  order  for  extension 
had  been  made  by  the  court  under  like  circumstances,  the 
defendant  would  not  have  been  deprived  of  his  right  to  set 
up  usury. 

The  complainant  asks  to  suppress  the  answer  on  the 
further  ground  that  the  defendant,  Smith,  has  answered 
alone,  instead  of  filing  a  joint  answer  for  himself  and  his 
wife. 

Where  a  husband  and  wife  are  made  defendants  to  a  bill 
in  equity,  the  husband  must  appear  for  both,  and  the  com- 
plainant is  entitled  to  a  joint  answer.  WyatCs  Prac.  Reg. 
37,  53 ;  1  NewL  Prac.  109 ;  1  DanieWs  Chan.  Prac.  548 ;  1 
Barb.  Chan.  Prac.  82. 

If  the  husband  is  unable  to  put  in  a  joint  answer,  or  if 
the  wife  desire  to  answer  separately,  or  the  husband  is  not 
in  a  situation  to  answer  for  her,  an  order  for  a  separate 


MAY  TERM,  1860.  45 

Collard  v.  Smith. 

answer  must  l>e  obtained.  2  Mad,  Prac.  269 ;  1  Smith's 
Prac.  253;  Cooper's  Eq.  PL  24;  Mitford's  Eq.  PL  83; 
Story's  Eq.  PI.,  §  71. 

If  the  wife  puts  in  an  .answer  separately  from  her  hus- 
band, the  court,  on  motion  of  the  complainant,  will  suppress 
it,  on  the  ground  of  irregularity.  Perine  v.  Swaine  et  nx.,  1 
Johns.  Ch.  R.  24  ;  Robbins  v.  Abrahams  and  wife,  1  HalsL 
Ch.  £.16;  1  Ch.  R.  68. 

So,  if  the  husband  answer  separately,  without  an  order 
authorizing  it,  the  answer  will  be  ordered  to  be  taken 
from  the  files,  as  irregular.  Leavitt  v.  Cruger,  1  Paige  421  ; 
Gee  v.  Collie,  3  Myltie  &  C.  180 ;  Bilton  v.  Bennett  and  wife, 
4  Simons  17. 

And  the  answer  must  not  only  be  joint,  but  must  be  sworn 
to  by  the  wife  as  well  as  by  the  husband,  or  it  will  be  sup- 
pressed for  irregularity.  But  the  irregularity  will  be  waived 
by  the  complainant's  filing  a  replication.  Fulton  Bank  v. 
JLach,  2  Paige  307;  8.  C.,  6  Wend.  36  ;  2  Mad.  Pmc..269 ; 
Duke  of  Chandos  v.  Talbot,  2  P.  Wms.  371. 

In  the  recent  case  <;f  Allen  and  Stevens  v.  Smith  and  wife, 
where  the  husband  filed  a  separate  answer,  without  the  wife, 
tha  answer  was,  upon  motion,  ordered  to  be  suppressed,  and 
a  decree  pro  confesso  entered  against  the  defendants,  for  want 
of  an  answer.  This  order,  however,  was  made  upon  the 
ground  that  the  defendant  did  not  appear,  or  apply  for  leave 
to  put  in  a  joint  answer,  although  notice  of  the  application 
was  given,  and  the  hearing  continued  from  time  to  time.  The 
regular  practice  ia,  as  appears  from  the  cases  above  cited, 
where  the  answer  is  suppressed  as  irregular,  to  give  the 
defendants  an  opportunity  of  putting  in  a  joint  answer,  on 
application  for  that  purpose. 

In  practice,  especially  where  the  wife's  separate  prop- 
tTiy  is  not  involved,  it  is  usual  to  receive  the  defendant's 
separate  answer.  Garey  v.  Wittitigham,  1  Sim.  &  Stu.  163. 
lint  this  must  be  with  the  concurrence  of  the  plaintiff. 
His  ivp'y — his  replication — waives  the  irregularity.  He  is 

VOL,   u.  C 


CASES  IN  CHANCERY. 


President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

entitled  to  a  joint  answer,  and,  if  he  require  it,  it  must  be 
put  in,  unless  the  order  of  the  court  be  obtained  to  answer 
separately. 

It  was  urged,  upon  the  argument,  that  the  only  remedy 
of  the  complainant  is  to  proceed  against  the  husband  for 
a  contempt.  This  course  may  be  adopted  to  compel  the 
answer  by  the  wife,  but  the  separate  answer  of  the  husband 
will  also  be  ordered  to  be  suppressed,  and  taken  off  the  file. 
1  Barb.  Prac.  82 ;  1  Dan.  Prae.  569. 

The  separate  answer  of  the  defendant  must  be  suppressed 
for  irregularity. 

CITED  in  Vanderce&r  v.  Holcomb,  7  C.  E.  Qr.  556 ;  Hill  v.  Colie,  10  C. 
E.  Gr.  470. 


THE  PRESIDENT,  MANAGERS,  AND  COMPANY  FOR  ERECT- 
ING A  BRIDGE  OVER  THE  RIVER  DELAWARE,  AT  OR 
HEAR  TRENTON,  vs.  THE  TRENTON  CITY  BRIDGE 
COMPANY  and  others. 

1.  Upon  principles  of  public  law,  it  is  clear  that  the  power  of  erecting 
a  bridge,  and  taking  tolls  thereon,  over  a  navigable  river  which  forms  the 
co-terminous  boundary  between  two  states,  can  only  be  conferred  by  the 
concurrent  legislation  of  both  states. 

2.  When  the  power  to  make  and  maintain  such  bridge,  and  take  tolls 
thereon,  has  been  given  by  the  joint  legislature  of  both  states,  the  princi- 
ple could  hardly  be  admitted  that  either  state,  by  its  separate  legislation, 
could  declare  that  no  other  bridge  should  be  built  across  such  river  within 
certain  limits,  and  thus  render  the  franchise  exclusive. 

3.  By  the  agreement  entered  into  between  the  States  of  New  Jersey  and 
Pennsylvania,  the  river  Delaware,  in  its  whole  length  and  breadth,  is  to 
be  and  remain  a  common  highway,  equally  free  and  open  for  the  use  of 
both  states,  and  each  state  is  to  enjoy  and  exercise  concurrent  jurisdiction 
within  and  upon  the  water  between  the  shores  of  said  river.     Both  states 
concurred  in  granting  to  complainants  the  right  to  erect  and  maintain 
their  bridge,  and  take  tolls  thereon.    The  legislature  of  New  Jersey  after- 
wards passed  an  act  declaring  "that  it  should  not  be  lawful  for  any  person 
or  persons  whatsoever,  to  erect  or  cause  to  be  erected,  any  other  bridge  or 
bridges  across  the  said  river  Delaware,  at  any  place  or  places  within  three 
miles  of  the  bridge  to  be  erected." 

4.  Held,  that  even  if  it  was  the  intention  that  this  act  should  take 
effect  without  the  assent  of  the  State  of  Pennsylvania,  that  it  is  void  on 


MAY  TERM,  18GO.  47 

President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

the  ground  that  it  is  in  contravention  of  the  agreement  above  mentioned 
between  the  two  states.  As  neither  state,  by  the  exercise  of  her  sole  ju- 
risdiction, has  the  right,  by  the  terms  of  the  agreement,  to  grant  the  fran- 
chise, so  neither  can  lawfully  contract  to  refuse  to  grant  it. 

5.  Under  the  circumstances,  as  exhibited  in  the  case,  it  was  further  held 
that  the  act  of  1801,  which  conferred  the  exclusive  privilege  on  the  com- 
plainanis,  was  not  designed  by  the  legislature  of  New  Jersey  to  go  into 
effect  until  the  same  had  received  the  assent  of  the  legislature  of  Penn- 
sylvania. 

6.  Whether  a  corporation  has  violated  its  charter  or  forfeited  its  fran- 
chise, is  a  question  solely  for  the  determination  of  a  court  of  law. 

7.  But  when  a  bridge  company,  setting  up  an  exclusive  right  within 
certain  limits,  asks  an  injunction  to  prohibit  the  building  a  bridge  within 
such  limits,  a  court  of  equity  will  not  lend  its  assistance  when  it  appears 
from  the  answer  that  the  bridge  of  the  complainants  has  been  so  far  appro- 
priated to  the  uses  of  a  railroad  as  to  render  it  inconvenient  and  dangerous 
for  ordinary  travel. 

This  case  came  before  the  court  on  a  motion  for  an  in- 
junction, and  was  argued  on  bill  and  answer. 

J/.  Beasley  and  Attorney -General,  for  complainants. 
B.  Gummere  and  P.  D.  Froom,  for  defendants. 

THE  CHANCELLOR.  The  complainants  are  the  proprie- 
tors of  an  existing  bridge  across  the  river  Delaware  at 
Trenton.  They  were  incorporated  by  the  concurrent  leg- 
islation of  the  states  of  New  Jersey  and  Pennsylvania, 
and  claim  and  exercise  the  unquestioned  right  of  taking 
tolls  upon  the  said  bridge  by  the  authority  of  both  states. 
They  claim  to  have  the  exclusive  franchise  of  having  a 
bridge  and  of  taking  tolls  for  the  distance  of  six  miles  up 
and  down  the  river,  so  that  no  other  bridge  can  be  erect- 
ed within  three  miles  of  their  bridge  upon  either  side  of 
it.  The  defendants  are  also  a  body  politic,  created  by  the 
concurrent  legislation  of  both  states,  with  authority  to 
erect  a  bridge  across  the  Delaware  at  the  ciiy  of  Trenton. 
They  are  now  engaged,  under  the  provisions  of  their 
charter,  in  erecting  a  new  bridge  across  the  river  within 
a  mile  of  the  complainants'  bridge,  and  which  it  is  ad- 


48  CASES  IN  CHANCERY. 

President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

mitted  will  divert  a  portion  of  the  travel  which  no\v 
crosses  at  the  old  bridge.  The  complainants  ask  a  per- 
petual injunction  to  restrain  the  defendants  from  erecting 
the  bridge  now  in  the  course  of  construction,  or  any 
bridge  whatever,  within  three  miles  of  the  existing  bridge 
in  violation  of  their  chartered  rights.  Both  parties  have 
express  legislative  sanction  for  their  respective  claims. 
The  complainants  rest  their  claim  to  the  exclusive  fran- 
chise upon  the  authority  of  a  grant  from  the  legislature 
of  New  Jersey  only.  The  defendants  claim  their  fran- 
chise under  the  authority  of  a  grant  from  both  states. 
The  complainants'  grant  is  prior  in  point  of  time,  and  if 
valid,  is  fatal  to  the  claim  of  the  defendants. 
Two  questions  are  to  be  considered  : 

I.  Are    the    complainants    invested    with    the    exclusive 
franchise   of  having   a  bridge   and    taking   toll  within  the 
limits  claimed  in  their  bill. 

II.  If  they  are,  are  they  entitled  to  the  exercise  of  the 
restraining  power  of  this  court  to  protect  them  in  the  en- 
joyment of  their  franchise. 

Before  proceeding  to  a  direct  examination  of  these 
questions,  it  is  well  to  notice,  as  preliminary  to  the  main 
inquiry,  that  no  reliance  is  placed  by  the  complainants  in 
support  of  their  claim  upon  the  doctrine  that  the  grant  of 
the  franchise  of  taking  tolls  by  the  states  of  New  Jersey 
and  Pennsylvania  raises,  by  necessary  implication,  au 
exclusive  grant.  They  claim  no  authority  whatever,  ex- 
press or  implied,  from  Pennsylvania  for  their  exclusive 
franchise.  Both  in  their  bill  and  upon  the  argument  they 
rely  for  their  exclusive  privilege  solely  upon  the  express 
grant  of  the  legislature  of  this  state.  The  doctrine,  there- 
fore, that  the  grant  of  a  franchise  necessarily  implies 
that  government  will  not  directly  or  indirectly  interfere 
with  it,  so  as  to  destroy  or  materially  impair  its  value, 
and  that  an  interference  by  the  creation  of  a  rival  fran- 
chise would  be  in  fraud  of  the  grant,  is  in  no  wise  drawn 
in  question  in  this  case. 


MAY  TERM,  1860.  49 

President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

On  the  other  hand,  the  defendants  do  not  deny  that 
if  the  complainants  are  invested  under  their  charter  with 
the  exclusive  franchise  claimed  in  their  bill  of  complaint, 
any  law  destroying-  that  franchise,  or  materially  impairing 
its  value,  is  unconstitutional  and  void.  The  principle  has 
been  so  repeatedly  recognized  by  the  highest  judicial  tribu- 
nals of  the  Union,  and  is  so  firmly  established  by  a  firm 
course  of  judicial  decision  in  New  Jersey,  that  it  cannot  be 
regarded  in  this  court  as  an  open  question.  Dartmouth  Col- 
lege v.  Woodward)  4  Wheat.  518. 

These  positions  being  adopted  as  settled  or  admitted  prin- 
ciples in  the  conduct  of  the  inquiry,  the  field  of  investigation 
is  reduced  to  a  narrow  compass.  Had  the  legislature  of  New 
Jersey  power  to  confer  upon  the  complainants-  the  exclusive 
franchise  claimed  in  their  charter?  And  if  they  had  the 
power,  has  it  been  exercised  ? 

The  complainants  claim  the  franchise  of  having  a 
bridge  across  the  Delaware  river,  connecting  the  States  of 
New  Jersey  and  Pennsylvania,  and  of  taking  tolls  there- 
on. The  river  is  the  boundary  between  the  two  states,  a 
public  navigable  river,  and  upon  principles  of  interna- 
tional law,  the  middle  of  the  channel  forms  the  line  of 
separation  between  the  territories  of  the  adjacent  states. 
Wheaton's  Elements  of  International  Law  252.  By  the  agree- 
ment between  the  two  states,  made  and  ratified  in  1783,  it  is 
declared — 

1st.  That  the  river  Delaware,  from  the  station  point  or 
northwest  corner  of  New  Jersey  to  the  place  upon  the 
said  river  where  the  circular  boundary  of  the  State  of  Del- 
aware toueheth  upon  the  same,  in  the  whole  length  and 
breadth  thereof,  is  and  shall  continue  to  be  and  remain  a 
common  highway,  equally  free  and  open  for  the  use, 
benefit  and  advantage  of  the  said  contracting  parties; 
provided,  nevertheless,  that  each  of  the  legislatures  of  said 
states  shall  hold  and  exercise  the  right  of  regulating  and 
guarding  the  fisheries  of  the  said  river  Delaware  annexed 


50  CASES  IN  CHANCERY. 

President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

to  their  respective  shores,  in  such  manner  that  the  said  fish- 
eries may  not.be  unnecessarily  interrupted,  during  the  season 
for  catching  shad,  by  vessels  riding  at  anchor  on  the  fishing 
ground,  or  by  persons  fishing  under  claim  of  a  common  right 
on  said  river. 

2d.  That  each  state  shall  enjoy  and  exercise  a  concur- 
rent jurisdiction  within  and  upon  the  waters,  and  not 
upon  the  dry  land,  between  the  shores  of  said  river.  Nix. 
Dig.  825. 

Independent  of  the  provisions  of  this  agreement,  upon 
principles  of  public  law,  it  would  seem  to  be  a  principle 
too  clear  to  admit  of  doubt,  that  the  power  of  erecting  a 
bridge  within  the  territories  of  both  states,  and  of  taking 
tolls  thereon;  could  only  be  conferred  by  the  concurrent 
legislation  of  both  states.  Neither  state  can,  of  its  own  au- 
thority, authorize  a  corporation  to  place  piers,  to  erect 
a  bridge,  and  construct  a  highway  over  the  navigable 
waters  and  within  the  territory  of  an  adjacent  state, 
much  less  can  it  confer  upon  such  corporation  the  fran- 
chise of  taking  tolls  within  the  territory  of  such  state. 
That  franchise  is  a  branch  of  the  sovereign  prerogative. 
The  conferring  of  it  is  an  exercise  of  sovereign  power, 
and  the  right  can  only  be  exercised  within  the  territory 
of  the  sovereignty  that  confers  it.  The  principle  that 
New  Jersey,  alone,  could  neither  confer  the  power  of 
building  the  bridge  or  of  taking  tolls  within  the  territory  of 
Pennsylvania,  is  too  clear  to  admit  of  dispute  or  to  require 
an  authority  in  its  support.  The  principle  was  recognized 
aucj  acted  upon  in  the  case  of  Middle  Bridge  Corporation  v. 
Marks,  26  Maine  E.  326. 

It  is  not  understood  that  the  counsel  of  the  complain- 
ants deny  this  principle.  They  claim,  indeed,  that  their 
clients  have  the  right  of  maintaining  the  bridge  and  of 
taking  tolls  by  the  joint  legislation  of  both  states,  and 
that,  having  such  right  conferred,  either  state  may  make 
the  franchise  exclusive.  Their  position,  if  correctly  un- 
derstood, is  their  having  acquired  the  undoubted  frail- 


MAY  TERM,  1860.  51 

President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

chise  of  having  the  bridge  and  taking  tolls  by  the  legisla- 
tive authority  of  both  states;  either  state  may  make  that 
right  exclusive  by  contracting  to  grant  no  other  charter. 
They  may  contract  to  do  what,  without  contract,  they  may 
lawfully  do,  viz.,  refuse  to  grant  any  further  franchise. 
The  position,  though  certainly  plausible,  does  not  seem 
to  me  to  be  tenable.  It  amounts  to  this,  that  although 
the  consent  of  both  states  is  necessary  to  confer  the  fran- 
chise of  taking  tolls  at  any  given  point  upon  the  river, 
yet  that  right  once  granted,  either  state  may,  at  its  plea- 
sure, by  its  own  legislation  and  for  its  own  advantage, 
make  that  grant  exclusive  throughout  the  whole  extent  of 
the  river.  Irrespective  of  the  terms  of  the  agreement  of 
1783  between  the  two  states,  I  repeat  that  I  should  hesi- 
tate to  accept  the  position  as  tenable. 

But  the  case  is  made  much  stronger  against  the  com- 
plainants by  the  terms  of  the  agreement  between  the 
states.  It  is  thereby  expressly  declared  that  the  river 
Delaware,  in  its  whole  length  and  breadth,  is  to  be  and 
remain  a  common  highway,  equally  free  and  open  for  the 
use,  benefit  and  advantage  of  both  states,  and  that  each 
state  shall  enjoy  and  exercise  a  concurrent  jurisdiction 
within  and  upon  the  water  between  the  shores  of  said 
river.  Now,  if  it  be  admitted  that  it  is  not  the  necessary 
construction  of  this  agreement  that  it  prohibits  each  state, 
upon  its  sole  authority,  from  authorizing  the  construction 
of  a  bridge,  even  from  its  own  shore  to  the  centre  of  the 
river,  within  its  own  territory,  provided  such  bridge  does 
not  interfere  with  the  navigation  of  the  river  as  a  high- 
way, such  construction  is  certainly  warranted  by  the  terms 
of  the  agreement.  It  may,  perhaps,  be  held  that  each 
state  might,  without  a  violation  of  the  contract,  authorize 
the  erection  of  a  bridge  to  the  centre  of  the  river  within 
its  own  territory,  and  the  taking  of  tolls  thereon  ;  and  yet 
such  is  not  the  practical  construction  which  has  been 
given  to  its  terms.  Neither  state  has  ever  attempted  to 
make  such  a  grant;  on  the  contrary,  it  is  believed  that  in 


52  CASES  IN  CHANCERY. 

President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

the  charters  of  the  numerous  bridges  which  now  span  the 
river  from  the  north  station  point  to  tidewater,  each  state 
has  invariably  granted  the  privilege  of  building  the 
bridge  and  of  taking  tolls,  not  only  within  its  own  terri- 
tory, but  from  shore  to  shore,  thus  exercising,  in  the  lan- 
guage of  the  agreement,  concurrent  jurisdiction  between 
the  shores  of  the  liver.  In  the  charter  of  the  complain- 
ants, power  is  not  given  by  the  legislature  of  New  Jersey 
merely  to  erect  a  bridge  within  the  limits  of  this  state, 
to  unite  with  a  structure  authorized  by  the  legislature  of 
Pennsylvania  within  the  territory  of  that  state,  but  power 
is  given  to  erect  the  brirlge  across  the  river  from  shore  to 
shore,  and  the  grant  is  made  upon  the  express  condition 
that  it  shall  not  be  operative  until  the  legislature  of  the 
State  of  Pennsylvania  shall  confer  the  like  power  and  au- 
thority to  erect  the  said  bridge,  and  extend  the  same  from 
the  shore  on  the  west  side  of  the  river  across  the  same  to 
its  opposite  shore,  thus  treatfng  the  franchise  of  erecting 
the  bridge  within  the  shores  of  the  river  as  an  entirety  to 
be  granted  only  by  the  concurrent  legislation  of  both 
states.  If,  then,  New  Jersey,  by  the  exercise  of  her  sole 
jurisdiction,  had  no  right,  by  the  terms  of  the  agreement, 
within  the  shores  of  the  river,  even  within  her  own  terri- 
tory, to  grant  the  franchise,  can  she  lawfully  contract  to 
refuse  to  grant  it  ?  Does  not  the  right  of  refusing  to 
grant  involve  necessarily  the  power  of  granting?  But 
the  contract  not  to  grant  to  others  involves  the  grant  of  a 
franchise  to  the  complainants,  and,  as  has  been  said,  the 
state,  by  virtue  of  its  sole  authority  to  grant  such  fran- 
chise. I  conclude,  therefore,  that  the  alleged  grant  of 
the  franchise  claimed  by  the  complainants  by  the  sole  au- 
thority of  New  Jersey,  without  the  consent  of  Pennsylva- 
nia, was  invalid  and  inoperative. 

But  admitting  the  power  of  the  legislature  to  grant  the 
franchise,  was  the  grant  made  or  intended  to  take  effect 
without  the  consent  of  the  legislature  of  Pennsylvania? 

The  complainants  claim  to  be  a  corporation,  and  to  r.r- 


MAY  TERM,  1860  53 


President,  Managers,  &c.,  v.  Trenton  CKJ  Bridge  Co. 

ercise  their  corporate  franchises  by  virtue  of  an  act  passed 
by  the  legislature  of  New  Jersey  on  the  3d  of  March,  and 
ratified  by  the  State  of  Pennsylvania  on  the  4th  of  April, 
1798.  Pamph.  L.  of  N.  J.  321  ;  5  Carey  &  Bioren's  Laws 
of  Penn.  348.  The  act  does  not  directly  incorporate  the 
company,  but  authorizes  the  governor,  when  it  shall  be' 
certified  to  him  that  a  certain  number  of  shares  of  stock 
shall  have  been  subscribed,  to  create  and  erect,  by  letters 
patent,  the  subscribers  into  a  body  politic  and  corporate. 
By  the  last  section  of  the  act,  it  is  enacted  as  follows: 
"Nothing  in  this  act  shall  be  deemed,  taken,  or  construed 
to  authorize  or  empower  the  governor  to  incorporate  or 
empower  any  persons  subscribing  as  aforesaid,  or  shall 
give  any  power  or  authority  to  such  subscribers  to  do  any 
act,  matter,  or  thing  herein  mentioned,  until  such  time  as 
the  legislature  of  the  State  of  Pennsylvania  shall,  by  law, 
vest  the  like  powers  and  authority  in  such  subscribers,  to 
erect  the  said  bridge,  and  extend  the  same  from  the  shore 
on  the  west  side  of  the  said  river,  at  or  near  Trenton, 
across  the  same,  to  its  opposite  shore,  with  as  full  and 
ample  powers,  privileges,  franchises,  and  emoluments  as 
to  the  subscribers  are  herein  given ;  and  the  said  sub- 
scribers, having  such  authority,  shall  be  incorporated  as 
aforesaid." 

The  original  act  of  both  states  confers  upon  the  cor- 
poration the  same  powers,  privileges,  and  franchises,  and 
contains  the  same  provisions,  with  the  exception  of  the 
ninth  section  of  the  act  of  this  state,  which  was  inserted,  in 
its  passage  through  the  house  of  assembly,  on  the  petition 
of  a  citizen  of  Trenton,  praying  that,  if  the  law  should 
pass,  the  company  should  be  required  to  build  the  bridge 
at  the  head  of  or  above  the  falls  of  Trenton,  or  that  a  clause 
should  be  inserted  in  the  bill  by  which  the  company  should 
be  compelled  to  make  compensation  for  any  damages  occa- 
sioned by  building  the  bridge.  Minutes  of  Assembly,  Feb- 
ruary Ibth,  1798,  p.  32. 

It  is  abundantly  manifest,  from  the  provisions  of  the  act 


54  CASES  IN  CHANCERY. 

President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

of  1798,  as  adopted  by  both  states,  not  only  that  all  the  cor- 
porate powers  and  franchises  of  the  company  were,  in  fact, 
conferred  by  the  concurrent  legislation  of  both  states,  but 
that  the  assent  of  each  state  was  expressly  required,  and 
declared  to  be  necessary,  by  the  legislature  of  the  other,  to 
the  validity  of  the  grant. 

This  act  contains  no  grant  of  an  exclusive  franchise. 
But,  on  the  26th  of  February,  1801,  the  legislature  of  New 
Jersey  passed  an  act  to  aiter  and  amend  the  act  of  1798. 
This  act  contains  four  sections,  the  fourth  and  last  of  which 
is  as  follows :  "  It  shall  not  be  lawful  for  any  person  or 
persons  whatsoever,  to  erect  or  cause  to  be  erected,  any 
other  bridge  or  bridges  across  the  said  river  Delaware,  at 
any  place  or  places  within  three  miles  of  the  bridge  so  to 
be  erected  by  virtue  of  the  before-recited  act."  This  act 
contains  no  provision,  in  express  terms,  rendering  the 
assent  of  the  legislature  of  Pennsylvania  necessary  to  its 
validity.  The  complainants  claim  that  the  fourth  section 
operates  as  a  valid  grant  of  the  exclusive  franchise  of 
having  a  bridge  and  taking  toll  within  the  designated 
limits. 

If  the  views  which  hava  already  been  expressed  are  cor- 
rect, the  legislature  had  no  power  to  make  such  grant,  with- 
out the  assent  of  the  legislature  of  Pennsylvania.  If  such 
assent  was  necessary,  the  grant  would  not  only  be  inopera- 
tive without  it,  but  the  court  would  be  bound  to  presume, 
not  that  the  legislature  passed  an  illegal  and  void  act,  but 
that  it  was  in  contemplation  of  the  subsequent  assent  of  the 
legislature  of  Pennsylvania.  The  terms  of  the  act  itself,  and 
the  circumstances  under  which  it  was  enacted,  lead  to  the 
same  conclusion. 

By  the  act  of  1798,  the  same  powers,  franchises,  and 
privileges  were  granted  by  the  legislatures  of  both  states. 
The  act,  as  passed  in  each  state,  contains  the  provision 
already  cited,  viz.,  that  the  act  should  be  inoperative  until 
such  time  as  the  legislature  of  the  other  state  should 
confer  on  the  corporation  the  like  power  and  authority, 


MAY  TERM,  1860.  55 

President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

&c.,  with  as  full  and  ample  powers,  privileges,  franchise?:, 
and  emoluments  as  are  given  in  said  act.  It  was,  in  fact, 
a  condition  of  the  grant  by  each  state,  that  the  other 
should  make  a  like  grant.  The  condition  failing,  the 
grant  failed.  Now,  was  the  condition  fulfilled  by  a  literal 
compliance  with  its  terms?  If  a  similar  act  had  been 
passed  by  Pennsylvania,  which  was  void  by  the  consti- 
tution of  that  state,  or  if  a  similar  valid  act  had  been 
passed  by  that  state,  but  repealed  or  essentially  modified 
before  the  grant  of  the  letters  patent,  the  condition  would 
not  have  been  fulfilled,  and  the  act  of  this  state  would  have 
been  inoperative  and  void. 

Now  the  act  of  1801  was  passed  before  the  grant  of 
letters  patent  by  either  state — before  the  company  was 
incorporated  or  the  charter  accepted.  The  company  was 
erected  into  a  corporation  by  letters  patent,  granted  by 
tbe  executive  of  New  Jersey,  on  the  1st  of  August,  1803, 
and  by  the  governor  of  Pennsylvania,  on  the  16th  of  the 
same  month.  The  letters  patent  of  the  executive  of  this 
state  refer  both  to  the  original  act  of  1798  and  the  act  of 
1801,  and  authorize  the  corporation  to  have,  hold,  exer- 
cise and  enjoy  the  powers,  authorities,  right?,  privileges, 
and  franchises  in  the  said  acts  given,  granted,  and  spe- 
cified. 

The  letters  patent  of  the  governor  of  Pennsylvania  contain 
no  such  clause.  They  erect  the  company  into  a  corporation 
with  the  powers  and  franchises  conferred  by  the  act  of  1798, 
and  none  other. 

The  issuing  of  the  letters  patent  was  an  executive  act — 
the  mere  execution  of  a  power — and  could  confer  no  right 
or  franchise  not  granted  or  authorized  by  the  acts  of  the 
legislature.  If,  then,  the  act  of  1801  was  intended  to  take 
effect,  and  did  take  effect,  without  the  assent  of  Pennsyl- 
vania— if  it  materially  altered  or  was  repugnant  to  the 
powers,  provisions,  and  franchises  granted  by  the  act  of 
1798,  then  the  executive  of  Pennsylvania  had  no  authority 
to  grant  the  letters  patent,  or  to  incorporate  the  company. 


66  CASES  IN  CHANCERY. 

President,  Managers,  <%c.,  v.  Trenton  City  Bridge  Co. 

The  condition  upon  which  the  legislature  of  that  state 
had  authorized  the  charter  .had  failed,  viz.,  that  New 
Jersey  should  confer  similar  powers  and  franchises  upon 
the  corporation.  Now  the  act  of  1801,  and  every  section 
of  the  act,  does  alter  most  materially  the  powers,  privi- 
Jeges  and  franchises  of  the  corporation  and  of  the  individual 
corporators. 

By  the  3d  section  of  the  act  of  1798,  it  was  provided 
that  no  stockholder  should  have  over  twenty  votes,  what- 
ever might  be  the  number  of  his  shares.  By  the  1st  sec- 
tion of  the  act  of  1801,  this  provision  was  repealed,  and 
each  stockholder  declared  to  be  entitled  to  one  vote  for 
every  share  held  by  him,  thus  changing  the  powers  of  the 
stockholders  and  the  control  of  the  corporation.  How 
was  the  company  ever  to  be  organized  ?  Had  the  stock- 
holders different  rights  in  the  two  states,  and  did  those 
rights  depend  upoti  the  place  of  meeting  ?  The  2d  sec- 
tion of  the  act  of  1801  confers  upon  the  corporation 
powers  of  forfeiting  stock  and  of  suing  the  holders  of 
shares  for  non-payment  of  installments  not  conferred  by  the 
original  act. 

By  the  16th  section  of  the  act  of  1798,  if  at  the  end 
of  two  years  the  clear  income  of  the  bridge  would  not  bear 
a  dividend  of  six  per  cent,  per  annum  upon  the  capital 
expended,  the  company  were  authorized  to  increase  their 
tolls  so  as  to  raise  the  dividends  to  six  per  cent,  per  annum, 
and  maintain  such  increased  rate  of  tolls,  provided  the 
clear  income  would  not  produce  a  dividend  of  more  than 
fifteen  per  cent,  per  annum.  By  the  3d  section  of  the  act  of 
1801,  this  section  is  repealed.  The  franchise  of  taking  such 
increased  rate  of  tolls  is  taken  from  the  corporation,  and  the 
privilege  is  conferred  upon  the  states  of  New  Jersey  and 
Pennsylvania,  or  either  of  them,  of  taking  the  bridge  and  its 
appurtenances  at  a  valuation  after  the  expiration  of  fifteen 
years  from  its  completion. 

The  4th  section  of  the  act  of  1801  contains  the  grant  of  the 
exclusive  franchise  claimed  by  the  complainants,  and  which 
forms  the  subject  of  the  present  controversy. 


MAY  TERM,  1860.  57 

President,  Managers,  &o.,  v.  Trenton  City  Bridge  Co. 

Can  it  be  conceived  that  the  legislature  would  have 
passed  that  act,  or  that  the  company  would  have  accepted 
it,  intending  that  it  should  go  into  operation  without  the 
assent  of  the  legislature  of  Pennsylvania?  Would  the 
legislature  have  altered  the  rights  of  the  stockholders,  im- 
paired the  franchises,  made  provision  for  the  purchase  of 
the  bridge  and  its  appurtenances  by  New  Jersey,  without  the 
consent  of  the  legislature  of  Pennsylvania  ?  Would  the 
company  have  accepted  such  act,  knowing  that  the  ratifica- 
tion of  the  charter  by  Pennsylvania  and  all  the  franchises  of 
the  company  were  dependent  upon  the  condition  that  the 
same  powers  and  franchises  should  be  granted  by  New  Jer- 
sey ?  The  act  of  1801  must  have  been  passed  by  the  legisla- 
ture, and  accepted  by  the  company,  in  contemplation  of  its 
being  concurred  in  by  the  legislature  of  Pennsylvania.  With- 
out such  assent  it  neither  had,  nor  was  intended  to  have,  any 
vital  power. 

I  am  of  opinion,  therefore,  that  by  the  act  of  1801,  the 
complainants  are  not  invested  with  the  exclusive  franeliise 
claimed  in  their  bill. 

There  is  another  question  raised  by  the  answer,  upon 
which,  (the  parties  are  entitled  to  the  opinion,)  in  justice 
to  the  parties,  it  is  right  that  an  opinion  should  be  ex- 
pressed. The  answer  alleges  that,  in  violation  of  the 
charter,  the  bridge  of  the  complainants  has  been  con- 
verted to  the  purposes,  and  is  constantly  used  for  the 
transit  of  locomotives  with  trains  of  cars  ;  that  the  bridge  is 
thereby,  for  the  purposes  of  ordinary  travel,  rendered  incon- 
venient, insecure  and  dangerous,  and  the  rights,  interests,  and 
convenience  of  the  public  in  the  enjoyment  of  the  bridge  im- 
paired, and  the  passage  of  the  bridge  by  ordinary  travel  be- 
tween the  two  states  interrupted. 

Whether  the  complainants  have  violated  their  charter 
or  forfeited  their  franchise  is  a  question  solely  for  the  de- 
termination of  a  court  of  law,  and  not  within  the  cogni- 
zance of  a  court  of  equity.  It  may  be,  and  for  the  pur- 
poses of  this  argument,  it  will  be  assumed  that  the 


58  CASES  IN  CHANCERY. 

President,  Managers,  &c.,  v.  Trenton  City  Bridge  Co. 

complainants  have  a  right,  in  law  and  in  consistency  with 
their  charter,  to  use  their  bridge  for  the  purposes  of  a  railroad. 
But  if  by  so  doing  the  great  purpose  of  their  charter,  the  use 
of  their  bridge  for  the  purposes  of  ordinary  travel,  is  serious- 
ly impaired — if  traveling  by  ordinary  vehicles  is  rendered 
inconvenient,  insecure  and  dangerous — if  the  convenience  and 
benefit  of  the  public,  for  whose  advantage  the  franchise  was 
granted,  are  sacrificed  to  the  pecuniary  interests  of  the  cor- 
poration, the  complainants  do  not  stand  in  a  position  to  ask 
the  interposition  of  the  extraordinary  powers  of  a  court  of 
equity  for  their  relief.  The  granting  of  an  injunction  always 
rests  in  the  sound  discretion  of  the  court,  and  when  upon  the 
answer,  which  for  the  purposes  of  this  case  must  be  taken  as 
true,  it  appears  that  the  great  purpose  of  the  grant,  the  con- 
venience of  the  ordinary  purposes  of  travel,  is  seriously  im- 
paired, the  court  will  deny  the  injunction  and  leave  the  com- 
plainants to  their  remedy  at  law. 
The  injunction  is  denied,  with  costs. 

In  concluding  this  opinion,  I  cannot  forbear  the  expression 
of  my  regret  that  more  time  has  not  been  afforded  for  the  in- 
vestigation of  the  important  questions  arising  in  this  cause 
than  has  been  permitted  by  the  short  time  which  has  elapsed 
since  the  argument,  and  by  the  incessant  interruptions  to 
which  I  have  been  exposed  by  the  calls  of  official  duty.  I 
would  gladly  have  held  the  case  for  further  investigation,  but 
justice  to  the  parties  demands  that  the  decision  should  be 
promptly  rendered. 

CITED  tn  Aify-Qen.  y.  Del  &  Bound  Brook  12.  R.  Co.,  12  C.  E.  Or.  647. 


MAY  TERM,  1860.  59 

Emery  v.  Downing. 


EMERY  vs.  DOWNING. 

1 .  A  decree  pro  eonfesso,  signed  after  the  time  for  answering  has  expired, 
is  regular,  though  an  order  for  further  time  to  answer  be  signed  and  filed 
on  the  same  day  with  the  signing  of  the  decree. 

2.  And  when  the  order  for  time  is  made  without  notice,  though  it  be 
made  to  appear  affirmatively  that  the  order  was  signed  and  filed  prior  to 
the  signing  of  the  decree,  the  complainant  will  be  entitled  to  the  costs  of 
proceeding  until  he  is  served  with  a  copy  or  with  notice  of  the  order. 

3.  A  defendant  coming  in,  without  unnecessary  delay,  by  motion  or 
petition,  after  a  decree  pro  eonfesso  regularly  taken,  will,  upon  any  reason- 
able ground  of  indulgence,  be  permitted  to  answer  upon  payment  of  costs. 

4.  But  if  it  appear,  upon  an  examination  of  the  answer,  that  it  contains 
no  valid  ground  of  defence,  the  decree  will  not  be  opened. 


J.  M.  Scovel,  for  defendant,  in  support  of  motion. 
P.  L.  Voorhees,  for  complainant. 

THE  CHANCELLOR,  An  ordinary  foreclosure  bill  was 
hied  by  the  complainant  in  this  cause  on  the  21st  of 
March,  1860.  A  subpoena  was  issued,  returnable  on  the 
2d  of  April.  The  defendants  being  non-residents,  the 
usual  order  for  publication  was  made,  requiring  the  de- 
fendants to  appear  and  plead,  answer  or  demur,  to  the 
complainant's  •  bill,  on  or  before  the  fourth  day  of  June. 
On  the  5th  of  June,  no  plea,  answer  or  demurrer  having 
been  filed,  and  due  proof  of  publication  having  been 
made,  the  complainant  obtained  a  decree  pro  eonfesso 
against  all  the  defendants  and  an  order  of  reference  to  a 
master.  On  the  same  5th  of  June,  Downing,  one  of  the 
defendants,  having  filed  an  appearance,  obtained  an  order 
for  thirty  days'  time  to  answer.  The  motion  was  made 
without  notice  to  the  adverse  counsel,  and  was  unsup- 
ported by  affidavits,  but  was  granted  as  a  motion  of 
course  UJKMI  the  statement  of  counsel.  An  answer  was 
filed  by  Downing  within  the  time  thus  allowed.  The 
complainant,  having  no  notice  of  the  order  for  time  to 


60  CASES  IN  CHANCERY. 

Emery  v.  Downing. 

answer,  proceeded  under  his  decree  and  order  of  reference, 
and  on  the  17th  of  June  the  master's  report  was  filed,  and 
a  final  decree  in  favor  of  the  complainant  signed.  It  does 
not  appear  whether  the  decree  pro  confesso  or  the  order  for 
time  to  answer  was  first  signed. 
The  defendant  now  asks  : 

1.  That  the  decree  pro  confesso,  and  all   the  subsequent 
proceedings   under  it,  be  set  aside  and   made  void  as   irreg- 
ular.    And  failing  that  motion,  he  asks — 

2.  That    the   decree   be   opened,   and    the   defendant   be 
permitted  to  defend  under  the  answer  filed  in  the  cause. 

The  application  is  by  motion  upon   notice  sustained    by 
affidavits. 

1.  The  decree  pro  confesso  is  clearly  regular.     The  time 
for  answering  expired    on  the  fourth  of  June.     The  com- 
plainant was  entitled  to  his  decree  at  the  earliest  moment 
on   the  fifth.     Until  the  contrary   is  shown,  the  presump- 
tion   is    that   the   decree    was    regularly   signed.     The    de- 
fendant is  asking  to  avoid  it,  and  it  is   incumbent  on  him 
to  show,  if  the  fact  be  so,  that  the  decree  \vas  signed  after 
the  order  was  obtained  for  time  to  answer. 

2.  The   second    reason   relied   on,    if  properly  sustained, 
affords  adequate  grounds  of  relief,  viz.,  that  the  defendant 
has  a   good    defence,  of  which    he    has    been    deprived    by 
mistake   or    misapprehension    on    his   own    part   or   on  the 
part   of  his    counsel.     There    is    nothing   in    the  objection, 
that  the  application  can  only  be  made  by  bill  of  review  or 
by  petition.      The  decree  has  not  been  registered.     There 
is  in   fact  no  ground  of  review  or  of  re-hearing.     There  is 
no   alleged    error    in    the  decree   as   it   stands.     There  has 
been    no  hearing.     The  bill  was  taken  as  confessed.     Tho 
defendant    simply   seeks   an    opportuntiy    of    presenting   a 
defence,  which  he  has  had    no  opportunity  to  make.     By 
the  practice  of  the  court,  the  application    may  be  either  by 
petition    properly    verified    or    upon    motion    sustained    by 
affidavit.     The  former  mode  is  the  more  usual  and  formal, 
but  either  may  be  resorted  to. 


MAY  TERM,  1860.  61 

Emery  v.  Downing. 

Where  relief  is  granted  upon  this  ground,  it  must  be  upon 
payment  of  costs,  even  though,  under  circumstances  like  the 
present,  the  order  for  time  had  been  actually  granted  before 
the  signing  of  the  decree. 

The  motion  for  an  order  for  time  is  strictly  a  special 
motion,  and,  regularly,  should  be  heard  only  upon  notice, 
and  be  sustained  by  affidavits  or  other  proof.  In  practice, 
however,  as  a  matter  of  convenience,  they  are  constantly 
granted  without  notice,  and  upon  the  mere  allegation  of 
counsel.  The  order,  in  the  present  instance,  was  so  granted. 
No  notice  of  the  application  was  given,  no  proof  was  made, 
other  than  the  mere  allegation  of  counsel,  that  there  was  a 
defence,  and  that  his  engagements  in  another  court  had 
deprived  him  of  the  opportunity  of  preparing  an  answer. 
Such  motions  can  only  be  regarded  as  motions  of  course,  and 
must  be  considered  as  granted  at  the  peril  of  the  applicant. 
If,  without  notice  of  such  order,  the  complainant  proceeds 
with  his  cause,  he  is  regular  in  so  doing,  and,  though  the 
proceeding  be  set  aside,  he  is  entitled  to  his  costs.  In  this 
cause,  the  complainant  may  be  presumed  to  have  been  advised 
that  no  answer  had  been  filed,  and  no  order  made  for  an 
extension  of  time  before  the  time  for  answering  had  expired. 
He  was  entitled,  therefore,  to  his  decree.  His  proceedings 
were  strictly  regular.  If  the  defendant  designed  to  arrest 
his  proceeding,  he  was  bound  to  serve  him  with  a  copy  of 
the  order  for  time.  It  would  be  manifestly  inequitable,  to 
subject  a  complainant  to  the  cost  of  a  proceeding  strictly 
regular,  and  adopted  without  notice  of  his  adversary's  order. 
Even  though  the  order  for  time  was  signed  before  the  decree, 
the  party  was  entitled  to  the  cost  of  his  proceeding, 
until  duly  advised  of  the  order  for  time.  3  DanieWs  Ch. 
Pr.  1789. 

The  defendant,  coming  in  after  a  decree  pro  confesso, 
regularly  taken  upon  any  reasonable  ground  of  indulgence, 
without  unnecessary  delay,  will  be  permitted  to  answer, 
upon  payment  of  costs,  though  the  court  may  require  to 

VOL.  n.  D 


62  CASES  IN  CHANCERY. 

Klapworth  v.  Dressier. 

see  the  answer,  or  to  be  informed  of  the  nature  of  the 
defence.  1  Darnell's  Ch.  Pr.  576. 

In  the  present  case,  the  answer  is  on  file.  On  examina- 
tion, it  is  apparent  that  it  contains  no  valid  ground  of  defence 
whatever.  If  the  truth  of  every  fact  alleged  in  the  answer, 
is  admitted  or  established  by  evidence,  it  would  constitute  uo 
defence  to  the  complainant's  right  of  recovery. 

The  motion  must  be  denied. 


WILLIAM  KLAPWORTH  and  DORIS,  his  wife,  vs.  MARCUS 
DRESSLER  and  HERMAN  ISE. 

1.  Where  one  purchases  land,  and  assumes,  in  his  deed,  to  pay  off  a 
bond  and  mortgage  of  his  grantor,  to  which  such  land  is  subject,  he  there- 
by becomes  a  surety  in  respect  to  the  mortgage  debt. 

2.  This  obligation  of  the  purchaser  to  pay  the  debt,  enures,  in  equity, 
to  the  benefit  of  the  mortgagee,  and  he  may  enforce  it  against  the  pur- 
chaser, to  the  extent  of  the  deficiency  in  a  bill  to  foreclose. 


This  case  came  up,  on  final  hearing,  upon  the  pleadings 
and  a  report  of  a  master. 

Keasbey,  for  complainants. 

* 

Runyon,  for  defendants. 

THE  CHANCELLOR.  It  appears,  by  the  master's  report, 
that  the  mortgage  in  question  was  given  by  the  defend- 
ant Dressier,  on  the  llth  of  August,  1853,  for  the  whole 
purchase  money  of  the  mortgage  premises  at  that  time 
conveyed  to  him  by  the  complainants.  On  the  1st  of 
August,  1854,  Dressier  conveyed  the  premises  to  Ise,  the 
other  defendant,  by  a  deed  of  bargain  and  sale,  stating 
therein  that  the  premises  are  sold  "subject  to  a  mortgage 
for  three  hundred  dollars,  which  Herman  Ise  does  hereby 


MAY  TERM,  1860. 


Klapworth  v.  Dressier. 


agree  and  assume  to  pay,  and  it  is  so  understood  by  the 
parties  to  these  presents."  The  master  further  reports  that, 
in  his  opinion,  the  said  Herman  Ise  should  be  decreed  to 
pay  the  deficiency,  (if  any,)  with  interest  and  costs,  after 
applying  to  the  payment  of  the  debt  the  proceeds  of  the 
sale  of  the  mortgaged  premises,  and  to  be  personally 
liable  to  the  complainant  therefor. 

1.  Is  Ise,  the  purchaser,  liable  to  the  complainant  for  the 
deficiency  ? 

2.  Can  the  liability  be  enforced  in  this  form  of  proceed- 
ing? 

The  premises  are  not  merely  conveyed  to  the  plaintiff, 
subject  to  the  mortgage  debt.  When  this  is  done  the 
grantee  takes  the  premises  subject  to  the  encumbrance, 
but  incurs  no  personal  responsibility.  But  the  grant  is 
here  made  upon  the  specific  condition  that  the  grantee 
agrees  and  assumes  to  pay  the  debt.  By  the  acceptance 
of  the  title,  the  clause  becomes  his  covenant,  and  he 
thereby  becomes  bound  to  the  grantor  to  pay  the  mortgage 
debt,  and  liable  to  him  for  any  deficiency  which  may  ex- 
ist upon  a  sale  of  the  mortgaged  premises.  Finley  v.  Simp- 
son, 2  Zab.  311,  and  cases  there  cited. 

Does  this  liability  enure  in  equity  to  the  complainants, 
and  may  it  be  enforced  for  their  benefit?  If  the  complain- 
ants, after  a  sale  of  the  mortgaged  premises,  should  en- 
force payment  of  the  balance  by  an  action  at  law  against 
Dressier  upon  his  bond,  it  is  clear  that  he  would  have  his 
remedy  over  against  Ise.  May  the  complainants  have 
their  remedy  in  equity  directly  against  Ise,  when  Dressier 
is  insolvent,  or  no  remedy  can  be  had  against  him  per- 
sonally ? 

Where  a  grantee  in  a  deed  covenants  with  the  grantor 
to  pay  off  an  encumbrance  subsisting  upon  the  premises, 
if  the  grantor  is  personally  liable  for  the  payment  of  the 
encumbrance,  the  grantee,  by  virtue  of  the  agreement,  is 
regarded  in  equity  as  the  principal  debtor,  and  the  grantor 
as  a  surety  only.  And  it  is  also  a  principle  in  equity, 


64  CASES  IN  CHANCERY. 

Klapworth  v.  Dressier. 

that  "a  creditor  is  entitled  to  the  benefit  of  all  collateral 
obligations  for  the  payment  of  the  debt,  which  a  person 
standing  in  the  situation  of  a  surety  f>r  others  has  re- 
ceived for  his  indemnity,  and  to  relieve  him  or  his  pro- 
perty from  liability  for  such  payment."  Curtis  v.  Tyler,  9 
Paige  432 ;  Halsey  v.  Reed,  9  Paige  446  ;  King  v,  Whiteley, 
10  Paige  465  ;  Slyer  v.  Monholland,  2  Sand.  Oh.  R.  478  ; 
Rawson's  Adrrtr  v.  Copland,  2  Sand.  Ch.  It.  251  ;  Trotter 
v.  Hughes,  2  Kernan  74. 

These  eases  fully  establish  the  principles  above  slated, 
and  recognize  their  application  to  a  case  like  that  now 
before  the  court.  The  case  of  Blyer  v.  Monholland  is  di- 
rectly in  point.  Adopting  and  applying  these  principles, 
they  control  the  present  case. 

Dressier  is  legally  liable  to  the  complainant  for  the 
payment  of  the  complainant's  mortgage.  Ise  has  cove- 
nanted with  Dressier  to  pay  the  debt,  and  is  eventually 
liable.  It  is  a  part  of  the  price  which  lie  was  to  .pay 
for  the  premises.  Whether  the  covenant  bound  him, 
to  pay  the  debt  to  Dressier,  or  directly  to  the  complain- 
ants, is,  in  equity,  immaterial.  The  effect  of  this  arrange- 
ment made  Dressier  in  equity  the  surety  of  Ise  in  re- 
spect of  the  mortgage  debt  to  the  complainants.  The 
obligation  enured  in  equity  to  their  benefit.  This  result 
is  perfectly  equitable  and  just,  as  between  all  the  par- 
ties. The  debt  is  justly  due  and  owing  to  the  complain- 
ants. Ise  is,  by  the  terms  of  his  deed,  bound  to  pay  it. 
It  is  a  part  of  the  price  of  the  land  to  which  tie  holds 
the  title.  Dressier  is  not  in  equity  liable  for  the  debt. 
He  has  no  interest  in  the  land.  He  parted  with  his  in- 
terest to  Ise,  and,  as  a  part  of  the  price,  received  his  cove- 
nant to  pay  this  debt.  In  equity  the  debt  is  the  debt  of 
Ise,  and  Dressier  the  mere  security.  If  Dressier  should 
be  compelled  to  pay,  he  would  have  recourse  over  imme- 
diately to  Ise.  If,  therefore,  Dressier  were  able  and  will- 
ing to  pay  the  debt,  the  decree  against  Ise  is  in  accord- 
ance with  equity.  But  the  bill  charges,  and  the  master 


MAY  TERM,  1860.  65 

Klapworth  v.  Dressier. 

reports,  that  Dressier  is  insolvent,  and  if  this  relief  is  de- 
nied the  complainants  the  result  will  be  that  the  complain- 
ants lose  their  debt,  and  Ise  acquires  title  to  the  land  with- 
out paying  the  price  which  he  covenanted  to  pay.  I  cannot 
doubt  that  a  decree  against  Ise,  as  prayed  for  in  the  bill  of 
complaint,  is  in  strict  accordance  with  the  principles  of 
equity. 

It  remains  to  be  considered  whether  the  complainants  are 
entitled  to  such  relief  upon  a  bill  to  foreclose. 

In  New  York,  on  a  bill  filed  for  the  satisfaction  of  a 
mortgage,  it  is  the  practice  to  decree  payment  by  the 
mortgagor  or  by  any  other  person  who  may  have  become 
security  for  the  payment  of  the  debt,  of  the  balance  of 
the  debt  remaining  unsatisfied  after  a  sale  of  the  mort- 
gaged premises.  This  is  done,  however,  by  virtue  of  the  ex- 
press provisions  of  their  statute.  2  Rev.  St.  191,  §§  152,  154, 
(1829.) 

Independent  of  statutory  provision,  the  rule  of  equity  is, 
that  a  bill  to  foreclose  is  in  the  nature  of  a  proceeding  in  rem, 
and  the  party  is  confined  in  his  remedy  to  the  pledge.  The 
suit  is  not  intended  to  act  in  personam.  Dunkley  v.  Van 
Euren,  3  Johns.  Ch.  331. 

In  this  case  the  bill  was  filed  to  foreclose  a  mortgage 
given  to  secure  the  payment  of  a  bond.  The  bill,  in  form, 
was  an  ordinary  foreclosure  bill.  The  complainant  ap- 
plied for  a  decree  directing  the  mortgagor,  in  case  of 
a  deficiency  upon  the  sale  of  the  mortgaged  premises,  to  pay 
the  remainder  of  the  debt.  It  was  ruled  that  his  proper 
remedy  was  at  law  upon  the  bond.  Hunt  v.  Dunn,  6  Stew. 
&  For.  138. 

But  if  the  bond  be  lost,  or  if  there  be  other  special  cir- 
cumstances which,  independently  of  the  mortgage,  give 
the  court  jurisdiction  over  the  demand,  a  decree  against 
the  mortgagor  will  be  made  for  the  balance  of  the  debt  re- 
maining unsatisfied  by  a  sale  under  the  mortgage.  Green 
\.  Crocket,  2  Dev.  &  Bat.  Ch.  390;  Crutchfield  v.  Coke,  6  J. 
J.  Marsh.  89. 


CASES  IN  CHANCERY. 


Ware  v.  Thompson's  Administrators. 


In  this  case  the  complainant  has  no  remedy  whatever  at 
law  against  Ise.  The  claim  is  purely  equitable,  and  must  be 
enforced,  if  at  all,  in  a  court  of  equity.  The  bill  is  framed 
with  a  view  to  this  form  of  remedy,  and  prays  for  this  specific 
relief.  It  charges  that  Ise  is  responsible  for  the  debt.  He 
has  had  a  full  opportunity  of  answering.  Under  these  cir- 
cumstances, there  is  no  reason  why  he  should  not  be  decreed 
to  pay  the  debt  under  the  bill. 

CITED  in  Hoy  v.  JBramhatt,  4  C.  E.  Or.  570 ;  Jarman  v.  Wiswatt,  9  C.  E. 
Or.  269 ;  Orowett  v.  Currier,  12  C.  E.  Or.  154. 


WARE  vs.  THOMPSON'S  ADMINISTRATORS  and   others. 

1.  A  bond  valid  in  its  inception  is  not  rendered  invalid  by  the  subse- 
quent receipt  of  usurious  interest. 

2.  If  after  the  completion  of  the  contract,  a  part  of  the  loan  is  withheld 
as  a  premium  for  the  loan,  in  violation  of  the  agreement,  the  contract  is 
not  thereby  rendered  usurious. 

3.  Where  a  party  comes  into  a  court  of  equity  seeking  relief  against  a 
usurious  contract,  he  must  offer  to  pay  the  sum  actually  due. 


Bill  for  discovery,  relief  and  injunction  to  restrain  pro- 
ceedings at  law. 

The  bill  charges  that  on  a  loan  of  $500,  made  by  the 
defendant's  intestate  to  the  complainant,  on  the  26th  of 
March,  1849,  the  complainant  gave  his  bond,  of  that  date, 
in  the  penal  sum  of  $1000,  conditioned  to  pay  $500,  with 
legal  interest,  on  the  26th  of  July,  1849;  that  out  of  the 
$500  thus  loaned,  the  intestate  retained  $25  as  a  bonus 
for  the  loan  for  four  months,  over  and  above  the  legal  rate 
of  interest,  and  that  at  the  end  of  every  four  months  dur- 
ing the  period  of  nine  years,  he  demanded  and  received 
an  additional  bonus  of  $25  over  and  above  the  legal  rate 
of  interest  for  the  continuance  of  the  loan — and  that  dur- 
ing that  period  the  complainant  paid  $75  per  annum, 
amounting  to  $675  over  and  above  the  legal  rate  of  inter- 
est, as  a  consideration  for  the  loan  ;  that  on  the  8th  of 
November,  1849,  the  obligee  died  intestate,  and  the  com- 
plainant having  refused  to  make  further  payments  upon. 


MAY  TERM,  1860.  67 

Ware  v.  Thompson's  Administrators. 

the  bond,  the  administrator  brought  suit  at  law,  and  on 
the  16th  of  May,  1860,  recovered  judgment,  and  sued  out 
execution  for  the  principal  and  interest  remaining  unpaid, 
by  virtue  whereof  the  sheriff  has  levied  upon  and  is  about 
to  sell  the  property  of  the  complainant.  The  bill  sug- 
gests surprise  as  a  reason  for  not  making  defence  at  law, 
prays  a  discovery  of  the  amount  already  paid,  and  an  ac- 
count, that  the  bond  may  be  declared  void,  that  the  ad- 
ministrator may  be  required  to  refund  the  amount  ille- 
gally paid,  and  that  an  injunction  may  issue  to  restrain 
further  proceedings  at  law. 

8.  A.  Allen,  for  the  complainant. 

THE  CHANCELLOR.  1.  Upon  the  case  made  by  the  bill, 
the  bond  itself  was  not,  in  its  inception,  usurious.  Upon  its 
face  it  is  made  for  a  legal  rate  of  interest.  There  is  no 
charge  that  it  was  made  upon  a  corrupt  agreement,.  The 
mere  fact  that  a  part  of  the  loan  was  withheld  as  a  bonus 
for  the  loan,  in  the  absence  of  any  charge  of  an  agree- 
ment for  that  purpose,  does  not  constitute  usury.  Howell 
v.  Auten,  1  Green's  Ch.  44. 

Nor  does  the  taking  of  usurious  interest  upon  the  bond 
after  its  consummation  render  the  bond  invalid.  Sloan  v. 
Towers,  2  Green  510;  Ex  Parte  Jennings,  1  Mad.  183,  (Am. 
Ed.};  Comyn  on  Usury  187. 

The  judgment  and  execution,  it  is  admitted,  only  seek 
to  enforce  the  payment  of  the  principal  of  the  bond,  with 
the  legal  rate  of  interest. 

2.  The  bill  contains  no  offer  to  pay  the  sum  actually  due, 
or  that  may  be  found  due  upon  the  bond.  The  rule  is  well 
settled,  that  where  a  party  comes  into  a  court  of  equity 
seeking  relief  against  a  usurious  contract,  he  must  offer  to 
pay  the  sum  actually  due.  If  he  omit  to  make  such  offer 
the  bill  is  demurrable,  and  an  injunction  will  not  be  allowed. 
Miller  v.  Ford,  1  Saxton  358  ;  Fanning  v.  Dunham,  5  Johns. 
Ch.  R.  122 ;  Morgan  v.  Schermei-horn,  1  Paige  544. 

The  order  for  injunction  is  denied. 

CITED  in  Givant  v.  McMurtry,  1  C.  £.  Or.  473. 


68  CASES  IN  CHANCERY. 

Allen  v.  Board  of  Chosen  Freeholders. 

CHARLES  G.  ALLEX  vs.  THE  BOARD  OP  CHOSEN  FEEE- 

HOLDERS  OF   THE   COUNTY   OF   MONMOUTH. 

1.  In  cases  of  public  nuisance,  a  bill  in  equity  asking  relief  by  way  of 
prevention,  can  be  maintained  by  a  private  person  only  on  the  ground  of 
apprehended  special  damage  peculiar  to  himself,  and  distinct  from  that 
done  to  the  public  at  large. 

2.  A  statute  of  this  state  authorized  the  freeholders  of  the  county  of 
Monmonth  to  erect  a  bridge  over  the  Navesink  river,  "  beginning  at  or 
near  the  house  of  Samuel  Hubbard,  Esq.,  commonly  called  Smock's  Point, 
or  near  the  house  of  Joseph  Van  Schoick,  or  from  Joseph  Smith's  Point 
to  the  opposite  shore."     On  3d  January,  1826,  the  freeholders  selected  the 
site  for  the  bridge,  and  upon  which  it  was  accordingly  erected.     A  rail- 
road had  been  recently  constructed  intersecting  the  road  near  the  bridge 
at  the  south  side  of  the  river,  rendering  the  use  of  the  road  at  that  termi- 
nus dangerous.    To  avoid  this  inconvenience,  it  was  now  proposed,  in 
erecting  a  new  bridge,  to  locate  its  southern  terminus  at  a  point  about  one 
hundred  yards  west  of  its  original  site.     The  complainant  was  the  owner 
of  about  twenty-five  acres  of  land,  near  the  termination  of  the  existing 
bridge,  bounding  on  the  public  road  leading  from  the  bridge,  of  a  valuable 
wharf  upon  the  river,  a  boarding-house,  and  other  valuable  improvements, 
situate  upon  streets  connected  with  the  road  leading  to  the  bridge,  to  all 
of  which  it  afforded  the  most  convenient  access. 

3.  Held — First.  That  the  right  to  erect  bridges  over  navigable  rivers 
does  not  reside  in  the  chosen  freeholders  by  virtue  of  their  general  powers, 
but  must  be  derived  from  special  power  conferred  by  the  legislature. 

4.  Second.  That  by  the  above  act,  the  power  of  locating  the  bridge 
within  certain  limits  was  given  to  the  discretion  of  the  freeholders ;  but 
that  having  exercised  that  discretion,  and  the  selection  having  been  made, 
their  powe.r  was  exhausted. 

5.  Third.  That  in  this  case  the  freeholders  had  not  the  power  materially 
to  alter  either  terminus  of  the  bridge. 

6.  Fourth.  That  the  injury  sustained  by  the  complainant  was  in  no  sense 
peculiar  to  himself,  and  on  this  account  his  bill  could  not  be  sustained. 

7.  Fifth.  That  although  the  new  bridge  was  technically  a  nuisance,  yet 
as  it  was  being  built  in  good  faith  and  for  the  public  benefit,  a  court  of 
equity  would  not  restrain  its  erection,  even  on  an  information  by  the  attor- 
ney-general in  behalf  of  the  public. 


An  injunction   had  been  allowed  on  filing  the  bill,  and 
a  motion  was  now  made  to  dissolve  it. 

J.  Parker  and  "Proom,  for  motion. 
Allen  and  Dayton,  for  defendants. 


MAY  TERM,  1860.  69 

Allen  v.  Board  of  Chosen  Freeholders. 

THE  CHANCELLOR.  The  complainant,  by  his  bill,  asks 
an  injunction  to  restrain  the  defendants  from  changing  the 
location  of  a  bridge  across  the  north  branch  of  the  Navesink 
river,  iri  the  county  of  Monmouth.  The  intervention  of 
this  court  is  asked,  upon  the  ground  that  the  defendants  have 
no  power  or  authority  to  change  the  location  of  the  existing 
bridge,  and  that  the  change  of  location  will  be  a  peculiar 
and  irreparable  injury  to  the  property  of  the  complain- 
ant. 

The  bridge  was  originally  located  and  constructed  by 
the  board  of  chosen  freeholders  of  the  county  of  Mon- 
mouth, under  the  authority  of  an  act  passed  on  the  3d 
of  December,  1825.  The  act  authorizes  the  bridge  to  be 
erected,  "  beginning  at  or  near  the  house  of  Samuel  Hub- 
bard,  Esq.,  commonly  called  Smock's  Point,  or  near  the 
house  of  Joseph  Van  Schoick,  or  from  Joseph  Smith's 
Point  to  the  opposite  shore."  Pamph.  54.  On  the  3d 
of  January,  1826,  the  freeholders,  under  authority  of  the 
act,  selected  the  site  for  the  bridge,  and  ordered  that  it 
should  be  located  "at  Oyster  Shell  Point,  over  said  river, 
to  the  opposite  shore,  near  Josiah  Van  Schoick's."  The 
bridge  was  erected  upon  the  site  thus  determined  upon, 
and,  having  become  dilapidated,  in  the  year  1839,  a  new 
bridge  was  erected,  about  six  feet  east  of  the  old  bridge, 
but  substantially  upon  the  same  site,  and  within  the  limits 
of  the  public  highways  upon  both  sides  of  the  river.  It  is 
now  proposed  to  erect  a  new  bridge,  commencing  at  the  same 
point,  near  Van  Schoick's  house,  on  the  north  or  Middle- 
town  shore  of  the  river,  but  extending  to  the  opposite  or 
Shrewsbury  shore,  about  one  hundred  yards  west  of  the  site 
as  originally  located.  On  the  Shrewsbury  shore,  the  bridge, 
as  proposed  to  be  located,  does  not  connect  with  the  ancient 
and  existing  highway,  but  with  a  new  road  laid  out,  or  pro- 
posed to  be  laid  out,  though  not  yet  lawfully  authorized,  to 
connect  with  the  ancient  highway  some  distance  from  the 
termination  of  the  bridge. 

Have    the    freeholders    power    to     make    the    proposed 


70  CASES  IN  CHANCERY. 

Allen  v.  Board  of  Chosen  Freeholders. 

change  in  the  location  of  the  bridge?  By  the  general  laws 
of  the  state,  the  erection  and  maintenance  of  county  bridges 
is  committed  to  the  discretion  of  the  chosen  freeholders  of  the 
respective  counties.  It  is  their  province  to  decide  upon  the 
necessity  or  expediency  of  erecting  a  bridge,  to  fix  the  loca- 
tion, and  determine  the  mode  of  construction;  With  this 
discretion,  the  courts  have  no  power  to  interfere.  But  this 
authority  does  not  extend  to  the  erection  of  bridges  across 
navigable  rivers.  The  channels  of  public  rivers  cannot  be 
obstructed,  nor  their  free  navigation  impeded,  except  by 
authority  of  the  legislature.  Hence,  the  existing  bridge 
across  the  Navesink  was  erected,  as  all  bridges  over  naviga- 
ble rivers  in  this  state  must  be,  by  express  legislative  sanc- 
tion. The  right  to  erect  the  bridge,  or  to  determine  the  site, 
does  not  reside  in  the  board  by  virtue  of  their  general  powers, 
but  is  derived  from  the  power  conferred  by  the  legislature. 

The  legislature,  by  the  act  in  question,  gave  authority  to 
the  board  to  erect  the  bridge  at  one  of  the  three  designated 
points,  and  thence  across  the  river  to  the  opposite  shore. 
Within  those  limits,  the  power  of  location  was  given  to  the 
freeholders.  But  that  discretion  having  been  exercised,  and 
the  selection  having  been  made,  the  power  was  exhausted. 
It  is  not  a  continuing  power,  which  enables  the  freeholders, 
in  all  future  time,  to  change  the  location  at  pleasure.  The 
general  principle  of  the  law  is,  that  when  the  power  of  elec- 
tion has  been  once  exercised,  when  the  election  is  made,  the 
power  is  determined. 

A  railroad  company,  having  once  located  their  route, 
under  the  authority  of  their  charter,  cannot  alter  the  location. 
Morehead  v.  The  Little  Miami  R.  R.  Co.,  17  Ohio  R.  340; 
Little  Miami  R.  R.  Co.  v.  Naylor,  2  Ohio  R.  235 ;  Pearce  on 
Railroads,  &c.,  218. 

Nor  can  a  canal  company  change  the  dimensions  of  their 
canal,  after  it  has  been  constructed,  though  the  proposed 
change  is  within  the  power  originally  conferred  upon  the 
corporation  by  their  charter.  Blakemore  v.  The  Glamorgan' 
shire  Canal  Navigation,  1  Mylne  &  K.  154. 


MAY  TERM,  1860.  71 

Allen  T.  Board  of  Chosen  Freeholders. 

Nor  can  a  turnpike  company  change  the  location  of  their 
gates,  which  have  once  been  located  by  the  corporation  under 
the  authority  of  law.  Slate  v.  Norwalk  and  Danbury  Turn. 
Co.,  10  Conn.  R.  157;  Turnpike  Co.  v.  Hosmer,  12  Com. 
364 ;  2  Swan.  282  ;  18  Johns.  E.  397. 

So,  when  an  unlimited  discretion  as  to  the  location  of  a 
bridge  is  vested  in  a  bridge  company,  when  that  discretion 
is  exercised  and  the  bridge  built,  the  grant  is  located,  and 
the  power  of  location  is  executed  and  gone.  Cayuga  Bridge 
Co.  v.  Magee,  6  Wend.  85. 

The  principle,  as  applied  to  private  corporations,  is  not 
denied  or  questioned.  No  reason  is  perceived  why  the 
same  principle  should  not  apply  where  a  special  power  is 
conferred,  and  an  election  given  to  a  board  of  chosen  free- 
helders  to  erect  a  bridge  over  navigable  waters.  In  such  • 
cases  the  discretionary  powers  of  the  board  may  be  exer- 
cised in  regard  to  all  matters  to  which  they  appertain,  as 
in  the  case  of  all  other  bridges,  they  may  decide  whether 
the  bridge  shall  or  shall  not  be  erected,  what  shall  be  the 
character  and  cost  of  the  structure,  and  whether  it  shall 
be  continued  or  abandoned.  All  -these  are  matters  of  dis- 
cretion, vested  in  the  board  by  virtue  of  their  office,  and 
in  no  wise  dependent  upon  the  special  grant  of  power  to 
erect  the  bridge.  Thus  in  Tucker  v.  The  Freeholders  of 
Burlington,  Saxton  282,  it  was  held  that  an  act  which  author- 
ized the  freeholders,  at  their  discretion,  to  build  and  main- 
tain a  bridge  over  Bass  river  at  a  specified  point,  vested  in 
the  freeholders  a  right  to  build  the  bridge  at  the  point  speci- 
fied, whenever,  in  their  discretion,  the  right  might  be  advan- 
tageously exercised. 

The  power  of  building  the  bridge  was  conferred,  and 
the  location  designated  by  the  act.  The  time  of  building 
was  left  to  the  discretion  of  the  freeholders,  and  might 
be  exercised  by  them  at  their  pleasure.  No  election  as 
to  the  exercise  of  the  special  powers  conferred  was  given 
by  the  act.  But  when  a  special  power  is  conferred  upon 
the  freeholders  of  building  a  bridge  over  navigable  water, 


72  CASES  IN  CHANCERY. 

Allen  v.  Board  of  Chosen  Freeholders. 

and  of  locating  it  at  one  of  two  or  more  points,  the  election 
is  not  made  by  virtue  of  the  general  discretionary  power  of 
the  board,  but  by  virtue  of  the  .special  power  conferred  by 
the  act.  It  is  not  a  continuing  power,  but  when  once  exer- 
cised, it  is  gone  forever.  The  freeholders  having,  in  pursu- 
ance of  the  power  conferred  by  the  act,  located  and  built 
"the  bridge  at  Oyster  Shell  Point,  over  said  river,  to  the 
opposite  shore,  near  Josiah  Van  Schoick's,"  have  no  power 
to  change  the  location  or  materially  to  alter  either  terminus 
of  the  bridge.  The  case  is  not  altered  by  the  fact  stated 
upon  the  argument,  that  Oyster  Shell  Point  includes  a  large 
extent  of  shore,  including  the  point  at  which  the  new  bridge 
is  to  have  its  termination,  so  that  the  location  of  the  new 
bridge  is  not  in  conflict  with  the  election  originally  made. 
What  the  board  meant  by  their  election  is  best  ascertained 
by  their  action.  The  maps  exhibited  in  the  cause  show  that 
the  bridge  on  the  Shrewsbury  side  of  the  river  terminates  at 
a  point  of  land  in  the  bend  of  the  river.  The  building 
of  the  bridge  at  that  point  shows  that  the  freeholders,  by 
the  location  at  Oyster  Shell  Point,  intended  the  point  at 
which  the  bridge  is  burlt,  and  not  an  indefinite  extent  of 
shore.  This  construction  of  the  power  conferred  in  the 
location  of  bridges  is  imperatively  demanded  on  conside- 
rations of  public  policy.  In  authorizing  the  construction 
of  a  bridge  over  navigable  waters,  the  legislature  may 
wisely  leave  to  the  discretion  of  the  freeholders  the  des- 
ignation of  the  precise  point  at  which  the  bridge  shall 
be  located.  But  when  the  election  has  been  made,  and 
the  bridge  erected,  and  when,  in  the  progress  of  time, 
roads  are  opened,  buildings  erected,  and  valuable  im- 
provements made,  adapted  to  and  induced  by  such  loca- 
tion, the  consequences  of  a  change  of  location  may  be  such 
as  the  legislature  never  could  have  contemplated,  and  never 
designed  to  authorize.  A  change  of  circumstances  has  ren- 
dered a  change  of  location,  which  was  a  matter  of  indiffer- 
ence when  the  law  was  passed,  highly  prejudicial  alike  to 
private  and  to  public  interests. 


MAY  TERM,  1860.  73 

Allen  v.  Board  of  Chosen  Freeholders. 

A  power  of  election  which  in  the  one  case  the  legisla- 
ture might  be  willing  to  confer,  in  the  other  they  would 
feel  constrained  to  deny.  The  public  grant  of  power  in 
this  case,  as  in  all  others,  must  be  strictly  construed.  It 
conferred  upon  the  freeholders  the  power  of  election,  and 
the  right  having  been  exercised,  the  power  is  exhausted. 
I  am  of  opinion  that  the  freeholders  have  no  rightful 
power,  under  the  special  authority  conferred  upon  them 
by  the  legislature,  to  change  the  location  of  the  bridge  in 
question. 

The  defendants  further  claim  that,  if  the  special  power 
conferred  by  the  statute  is  exhausted,  they  may  lawfully 
change  the  location  of  the  bridge,  by  virtue  of  their 
general  powers,  on  the  ground  that  the  river  has  ceased 
to  be  navigable.  The  river  has  always  been  regarded  as 
navigable.  Bridges  at  and  above  this  point  have  always 
been  erected  by  legislative  authority.  The  facts  alleged 
and  proved  by  the  defendants,  though  they  seem  to  show 
that  the  navigation  above  Red  Bank  is  of  little  compara- 
tive value,  do  not  prove  that  the  stream  is  not  navigable, 
and  that  it  is  consequently  withdrawn  from  the  guardian 
power  of  the  legislature.  The  freeholders  themselves  have 
not  so  regarded  it. 

But  this  case  must  be  decided  upon  other  grounds.  I 
have  expressed  an  opinion  upon  this  point  because  it  was 
elaborately  argued  by  counsel,  and  because  it  was  intimated 
that  it  was  desired  for  th'e  satisfaction  of  the  freeholders 
that  the  views  of  the  court  upon  the  question  of  power 
should  be  known. 

The  change  of  the  location  of  the  bridge  is  unlawful, 
as  being  an  unauthorized  obstruction  in  the  channel  of  a 
navigable  river.  Obstructions  to  navigation  are  public 
nuisances.  They  are  to  be  remedied  at  common  law  by 
indictment,  or  in  equity  by  an  information  filed  by  the 
attorney-general.  Angdl  on  Tide  Waters  115,  117;  The 
Attorney -General  v.  Stevens,  Saxton  369 ;  The  Attorney- Gene- 


74  CASES  IN  CHANCERY. 

Allen  v.  Board  of  Chosen  Freeholders. 

ral  v.  The  New  Jersey  R.  R.  and  Trans.  Co.,  2  Green's  Ch. 
R.  136;  Newark  Plank  Road  Co.  v.  Elmer,  1  StocU.  754. 

In  cases  of  public  nuisance  a  bill  in  equity,  asking  relief 
by  way  of  prevention,  can  be  maintained  by  a  private  per- 
son only  upon  the  ground  of  apprehended  special  (and  pecu- 
liar) injury  to  himself,  distinct  from  that  done  to  the  public 
at  large.  Angell  on  Tide  Waters  121  ;  Crowder  v.  Trickier, 
19  Vesey  616;  Corning  v.  Lowerre,  6  Johns.  Ch.  439;  City 
of  Georgetown  v.  Alexandria  Canal  Co.,  12  Peters  91 ;  Bige- 
low  v.  The  Hartford  Bridge  Co.,  14  Conn.  R.  565. 

The  complainant,  by  his  bill,  represents  that  he  is  the 
owner  of  twenty-five  acres  of  land  in  the  village  of  Red 
Bank,  near  the  termination  of  the  existing  bridge,  bounded 
on  one  side  by  the  river  and  partly  by  the  public  road  lead- 
ing from  the  bridge  through  the  village.  That  he  owns  a 
valuable  wharf  upon  the  river,  a  large  boarding-house  and 
other  valuable  buildings  and  improvements  in  the  village, 
situate  upon  streets  connected  with  the  road  leading  to  the 
bridge,  to  all  of  which  it  affords  the  most  ready  and  conve- 
nient access.  He  claims  relief  on  the  ground  of  special  in- 
jury to  his  rights  as  a  citizen,  in  the  navigation  of  the  river, 
as  the  owner  of  the  real  estate,  in  the  depreciation  of  its 
value,  and  as  a  tax-payer,  by  being  compelled  to  pay  an  in- 
creased amount  of  tax  for  the  cost  of  a  work  proposed  to  be 
erected  without  lawful  authority. 

As  regards  the  rights  of  navigation,  it  is  manifest  that  the 
complainant  sustains  no  injury  by  the  erection  of  the  new 
bridge  not  common  to  every  citizen. 

The  complainant  owns  no  wharf  or  other  property  above 
the  bridge.  His  wharf,  his  land,  and  all  his  improvements 
lie  below  the  existing  bridge.  If  it  was  proposed  to  erect 
the  new  bridge  further  down  the  river,  so  as  to  prevent  all 
access  to  his  wharf,  there  would  be  at  least  a  semblance  of 
reality  in  his  claim  of  special  injury.  But  the  new  bridge 
is  proposed  to  be  located  further  up  the  stream,  leaving  the 
present  bridge  between  it  and  the  defendant's  property. 


MAY  TERM,  1860.  75 

Allen  v.  Board  of  Chosen  Freeholders. 

It  is  not  perceived,  therefore,  how  the  complainant  can  sus- 
tain any  special  or  peculiar  injury  from  the  obstruction  of 
navigation. 

The  complainant's  land  does  not  lie  adjacent  to  the 
present  bridge,  nor  within  100  feet  of  its  termination. 
He  owns  no  land,  as  appears  by  the  defendant's  answer 
and  the  accompanying  map,  between  the  termination  of 
the  present  bridge  and  the  point  where  the  new  road  to  the 
proposed  bridge  will  intersect  the  ancient  highway.  All  the 
injury  which  can  result  to  his  property  from  the  erection  ot 
the  proposed  bridge  will  be  by  rendering  the  approach  to  a 
part  of  his  property  somewhat  less  direct,  and  by  diverting  a 
portion  of  the  travel  from  passing  his  land,  thus  rendering  it 
less  public.  But  these  constitute  no  grounds  of  legal  injury 
or  equitable  relief. 

The  injury  which  the  complainant  suffers  as  a  taxpayer 
he  sustains  in  common  with  every  other  taxpayer  of  the 
county,  and  in  this  respect  the  damage  which  he  sustains 
is  in  no  sense  special  or  peculiar;  and  if  it  were,  a  court 
of  equity  would  not  exert  its  restraining  power  to  arrest  a 
great  public  improvement  on  the  alleged  ground  that  a  dollar 
would  thereby  be  added  illegally  to  the  amount  of  the  com- 
plainant's tax. 

The  injunction  must  he  dissolved,  and  the  complainant's 
bill  dismissed,  with  costs. 

To  guard  against  misapprehension,  it  is  proper  to  add  that 
aside  from  the  form  of  proceeding,  there  is  nothing  in  the 
case,  as  it  appears  upon  the  defendant's  answer,  to  warrant 
the  interference  of  this  court,  even  upon  an  information.  A 
court  of  equity  exercises  its  restraining  power  in  cases  of  pub- 
lic nuisance  with  great  caution. 

In  the  case  of  The  Attorney-General  v.  The  New  Jersey 
Railroad  and  Transportation  Co.,  Chancellor  Vroom  denied 
the  relief  in  a  case  somewhat  similar  to,  but  much  stronger 
than  the  present.  The  river  above  the  bridge  is  compa- 
ratively litile  used  for  the  purposes  of  navigation  or  float- 


76  CASES  IN  CHANCERY. 

Allen  v.  Board  of  Chosen  Freeholders. 

age.  No  masted  vessels  pass  it.  For  several  years  the  draw 
in  the  existing  bridge  has  been  removed  or  disused.  The 
railroad  bridge,  recently  erected  further  down  the  river,  is 
without  a  draw.  The  erection  of  the  new  bridge  will  create 
no  serious  impediment  to  navigation. 

A  change  of  location  of  the  bridge  from  the  present  site  has 
become  highly  expedient,  if  not  absolutely  necessary,  The 
Raritan  and  Delaware  Bay  Railroad  intersects  the  highway 
near  the  termination  of  the  old  bridge  at  a  very  acute  angle, 
and  runs  for  some  distance  within  the  limits  of  the  road,  ren- 
dering the  use  of  the  highway  inconvenient  and  dangerous. 
A  due  regard  to  the  safety  of  the  lives  and  property  of  the 
traveling  public  requires  the  removal  of  the  bridge  and  high- 
way to  a  position  more  remote  from  the  railroad.  The  action 
of  the  board  in  making  the  change  appears  to  have  been 
adopted  in  good  faith,  upon  due  deliberation,  in  accordance 
with  public  sentiment,  and  upon  the  petition  of  large  num- 
bers of  the  inhabitants  of  the  county  residing  in  the  vicinity. 
Under  such  circumstances  there  is  no  reasonable  pretext  for 
interfering  with  the  action  of  the  freeholders,  although  the 
work  that  they  propose  to  construct  may  technically  consti- 
tute a  public  nuisance.  Whether  the  public  exigency  is  such 
as  to  require  the  immediate  action  of  the  board  without  se- 
curing the  concurrence  of  the  legislature,  is  a  question  solely 
for  the  consideration  of  the  freeholders,  the  legally  constituted 
guardians  of  the  public  interests  of  the  county. 

CITED  in  Hinehman  y.  Palerson  Horse  R.  R.  Co.,  2  C.  E.  Gr.  78  ;  Alt'y- 
Oen.  v.  Heishon,  3  0.  E.  Or.  413  ;  M.  &  E.  R.  R.  Co.  v.  Prudden,  6  C. 
E.  Or.  537 ;  Atfy-Oen.  v.  Del.  &  Sound  Brook  R.  R.  Co.,  12  C.  E. 
Gr.  27. 


MAY  TERM,  1860.  77 

Magie  v.  German  Evangelical  Dutch  Church. 


SETH  W.  MAGIE  vs.  THE  GERMAN  EVANGELICAL  DUTCH 
CHURCH  OF  NEWARK  and  others. 

1.  The  trustees  of  a  religious,  literary,  or  other  benevolent  association, 
irrespective  of  any  special  power  conferred  by  their  charters,  cannot  pur- 
chase and  hold  real  estate  under  trusts  of  their  own  creation,  which  shall 
protect  their  property*  from  the  reach  of  their  creditors. 

2.  Where  property  is  given  to  a  corporation  in  trust  for  a  charitable  use, 
the  trust  is  the  creature  of  the  donor,  and  he  may  impose  upon  it  such 
character,  conditions,  and  qualifications  as  he  may  see  fit. 

3.  But  the  case  is  widely  different,  where  a  corporation  attempts,  by 
means  of  its  own  devising,  however  honest  and  well  inlentioned,  to  place 
its  own  property  beyond  the  reach  of  its  creditors. 

4.  The  premises  in  question,  and  upon  which  the  defendants  had  erected 
a  house  of  worship,  were  conveyed  to  them  for  the  consideration  of  one 
thousand  dollars.     The  deed  was  an  absolute  conveyance  in  fee,  upon  cer- 
tain trusts  that  the  property  should  be  held  as  a  Lutheran  Church  forever, 
&c.,  and  contained  a  clause  that  the  grantee  should  not,  by  deed,  alienate, 
dispose  of,  or  otherwise  charge  or  encumber  said  property,  &c.     The  cor- 
poration executed  a  mortgage  to  secure  a  legitimate  debt. 

5.  Held,  that  the  corporation  had  the  legal  title  to  the  land,  and  the 
power  at  law  of  executing  the  mortgage,  and  that  there  was  no  equity  iu 
refusing  to  enforce  the  mortgage  for  the  payment  of  an  honest  debt  of  the 
corporation,  under  color  of  protecting  a  charitable  use. 


The  case  was  argued  on  bill,  answer,  and  the  admissions 
of  the  counsel.  The  facts  on  which  the  case  was  decided, 
appear  in  the  opinion  of  the  court. 

T.  Runyon,  for  complainant. 
J.  P.  Bradley,  for  defendants. 

THE  CHANCELLOR.  The  only  question  submitted  for  the 
consideration  of  the  court,  is  the  power  of  the  corporation 
to  encumber  the  premises  by  mortgage.  For  the  purpose 
of  the  present  inquiry,  the  existence  and  bona  fides  of  the 
debt,  and  the  due  and  formal  execution  of  the  mortgage, 
«by  authority  of  the  corporation,  is  conceded.  The  defend- 
ants, being  an  organized  religious  society  or  congregation, 

VOL.  n.  E 


78  CASES  IN  CHANCERY. 

Magie  v.  German  Evangelical  Dutch  Church. 

were  incorporated  under  the  act  to  incorporate  trustees  of 
religious  societies.  Nix.  Dig.  686. 

The  mortgaged  premises  were  conveyed  to  them  by 
Samuel  Ef.  Conger  and  wife,  by  deed  dated  the  81st  of 
October,  1839,  for  the  consideration  of  one  thousand  dol- 
lars, upon  which  the  defendants  have  erected  a  house  of 
worship.  The  deed  is  an  absolute  conveyance  in  fee, 
upon  the  following  trust,  viz.,  "to  have  and  to  hold  the 
said  property  as  an  Evangelical  Lutheran  Church  forever, 
in  which  the  doctrine  of  the  Augsburg  confession,  and 
Luther's  smaller  catechism,  shall  be  taught  and  adhered 
to,  and  provided  that,  if  necessary,  the  privilege  of  preach- 
ing in  the  English  language,  besides  the  German,  shall 
be  granted  to  the  rising  generation,  until  such  a  time 
that  a  separate  church  can  be  provided  for  an  English 
congregation,  so,  however,  that  the  Germans  shall  always 
have  the  right  to  select  *  their  time  for  worship;  and 
provided  further,  that  the  said  party  of  the  second  part 
shall  not,  by  deed,  mortgage,  or  by  any  other  ways  or 
means,  alienate,  dispose  of,  or  otherwise  charge  or  encum- 
ber said  property,  excepting  the  mortgage  now  given  to 
Samuel  H.  Conger,  to  secure  part  of  the  purchase  money 
of  said  premises.  And  provided  further,  that  in  case  these 
conditions  be  violated,  then  any  one  or  more  regular  mem- 
bers shall  have  the  right  of  applying  to  the  Evangelical 
Lutheran  Minister! am  of  the  State  of  New  York  and  adja- 
cent parts,  with  which  the  congregation  is  connected,  to  take 
possession  of,  hold,  and  keep  said  property  in  trust,  for  carry- 
ing out  the  above-named  purposes.  And  in  case  said  condi- 
tions be  violated,  and  uo  appeal  made  to  the  said  Evangelical 
Lutheran  Ministerium  of  the  State  of  New  York  and  adja- 
cent parts,  then  the  officers  of  said  ministerium  shall  consti- 
tute a  board  of  trustees,  with  full  powers  to  secure  said  prop- 
erty for  the  above-named  purposes." 

No  evidence  has  been  taken  in  the  cause.  These  facts, 
and  the  terms  of  the  trust,  have  been  derived  from  the 


MAY  TERM,  1860.  79 

Magie  v.  German  Evangelical  Dutch  Church. 

admissions  of  counsel  upon  the  argument,  and  from  the  alle- 
gations of  a  bill  filed  by  the  defendants  against  Moschamp, 
(2  Stockton,)  which  is  used  by  consent  as  evidence  for  the  pur- 
poses of  the  present  investigation. 

Independent  of  the  character  of  a  trust  impressed  upon 
the  property  by  the  terms  of  the  conveyance,  the  condition 
annexed  to  the  grant,  that  the  property  shall  be  inalienable, 
is  clearly  void. 

An  unlimited  power  of  alienation  is  an  inseparable  inci- 
dent of  an  estate  in  fee  simple,  and  cannot  be  restrained  by 
any  provision  or  condition  whatever.  1  Cruise's  Dig.,  Tit.  1, 
§  53 ;  4  Cruise's  Dig.,  Tit.  32,  c.  23,  §1,2;  Co.  LiU.  206,  c. 
223  a;  LiU.  §360. 

A  condition  repugnant  to  the  nature  of  the  estate  to  which 
it  is  annexed,  as  that  a  tenant  in  fee  shall  not  alien,  is  void 
in  its  creation.  2  Cruise's  Dig.,  Tit.  13,  c.  1,  §§  19,  32. 

But  it  is  urged  that  the  principle  is  not  applicable  to  the 
conveyance  now  under  consideration,  inasmuch  as  the  pro- 
perty is  conveyed  by  the  grantor  to  a  religious  corporation 
for  a  charitable  use  upon  this  special  trust,  among  others, 
that  it  shall  be  held  "as  an  Evangelical  Lutheran  Church 
forever,"  and  shall  not  be  alienated,  disposed  of,  charged  or 
encumbered,  by  deed,  mortgage,  or  by  any  other  ways  or 
means. 

The  trust  was  not  created  by  gift  or  devise.  The  land  was 
purchased  by  the  corporation  for  a  valuable  consideration, 
and  the  church  has  been  erected,  it  must  be  presumed, 
by  the  funds  of  the  corporation.  The  trust,  therefore, 
in  the  deed,  it  is  fair  to  assume,  was 'inserted  by  the  defend- 
ants at  their  own  instance  and  for  their  own  benefit  and  pro- 
tection. 

Nor  is  the  trust  created  or  protected,  or  the  alleged  in- 
ability to  convey  imposed  by  the  charter  of  the  defend- 
ants as  a  body  corporate.  On  the  contrary,  by  their  act 
of  incorporation,  the  defendants  are  authorized  not  only 
to  purchase  and  hold  lands  for  the  use  of  the  congregation, 


80  CASES  IN  CHANCERY. 

Magie  v.  German  Evangelical  Dutch  Church. 

but  "the  same,  or  any  part  thereof,  to  sell,  grant,  assign,  de- 
mise, alien  and  dispose  of." 

The  inquiry,  then,  results  in  this — may  the  trustees  of  a 
religious,  literary,  or  other  benevolent  association,  irrespective 
of  any  special  power  conferred  by  their  act  of  incorporation, 
purchase  and  hold  real  estate  under  trust  of  their  own  crea- 
tion which  shall  protect  their  property  from  the  reach  of  their 
creditors,  and  shield  it  against  appropriation  for  the  payment 
of  their  just  debts  ?  Is  that  a  charitable  use  which  a  court 
of  equity  is  bound  to  protect  ?  Where  property  is  given  to 
a  corporation  in  trust  for  a  charitable  use,  the  trust  is  the 
creature  of  the  donor.  He  may  impose  upon  it  such  charac- 
ter, conditions  and  qualifications  as  he  may  see  fit.  The  pro- 
perty being  a  gift,  no  wrong  is  thereby  done  to  the  creditors 
of  the  corporation,  and  a  court  of  equity  may  well  protect 
and  enforce  all  the  conditions  of  the  gift.  But  the  ease  is 
widely  different  where  a  corporation  attempts  by  means  of 
its  own  devising,  however  honest  and  well-intentioned,  to 
place  its  own  property  beyond  the  reach  of  its  creditors. 
This  certainly  is  not  a  charitable  use  which  a  court  of  equity 
can  be  called  upon  to  protect  and  enforce. 

So  far  as  this  deed,  by  means  of  the  trusts  contained  in  it, 
dedicates  the  property  to  the  exclusive  enjoyment  of  the  re- 
ligious society  for  whose  use  it  was  designed,  and  limits  and 
regulates  the  terms  of  that  enjoyment,  the  trusts  will  be  pro- 
tected and  enforced  by  the  court.  The  corporators  had  a 
clear  right  to  specify  the  purposes  to  which  the  property 
should  be  dedicated  and  the  uses  to  which  it  should  be  appro- 
priated. But  the  attempt  to  restrain  the  powers  of  alienation 
for  the  necessary  uses  of  the  corporation  is  illegal,  and  the 
condition  imposing  such  restraint  is  inoperative  and  void. 

The  corporation  had  the  legal  title  to  the  land  and  the 
power  at  law  of  executing  the  mortgage.  There  is  no  equity 
in  refusing  to  enforce  the  mortgage  for  the  payment  of  the 
honest  debts  of  the  corporation  under  color  of  protecting  a 
charitable  use. 

AFFIBMED,  2  McCar.  500. 


MAY  TERM,  1860. 


Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 


THE  PROPRIETORS  OF  THE  BRIDGES  OVER  THE  RIVERS 
PASSAIC  AND  HACKENSACK  vs.  THE  HOBOKEX  LAND 
AND  IMPROVEMENT  COMPANY. 

1.  The  clause  in  the  charter  of  the  proprietors  of  the  bridges  over  the 
rivers  Passaic  and  Hackensack,  which  declares  that  it  shall  not  be  lawful 
for  any  person  or  persons  whatsoever  to  erect,  or  cause  to  be  erected,  any 
other  bridge  or  bridges  over  or  across  the  said  river,  constitutes  a  contract 
on  the  part  of  the  state  which  cannot  constitutionally  be  annulled  or  ab- 
rogated. 

2.  It  is  immaterial  whether  the  instrument  by  which  the  public  faith  is 
pledged  is  in  its  terms  a  contract,  or  in  form  a  mere  legislative  enactment : 
in  either  event  it  is  equally  a  contract  within  the  meaning  of  the  consti- 
tution. 

3.  The  proprietors  of  the  bridges  over  the  rivers  Passaic  and  Hacken- 
sack  have,  by  contract  with  the  state,  the  exclusive  franchise  of  maintain- 
ing said  bridges,  and  taking  tolls  thereon,  and  such  contract  is  within  the 
protection  of  the  constitution,  which  declares  that  no  law  shall  be  passed 
impairing  the  obligation  of  contracts. 

4.  But  the  construction  of  a  viaduct  over  said  river  for  a  railway,  to  be 
used  exclusively  for  the  passage  of  locomotives,  engines  and  railroad  cars, 
is  not  a  bridge  within  the  prohibition  of  said  charter. 

5.  Public  grants  are  to  be  construed  strictly. 


This  case  was  argued  upon  bill  and  answer,  on  motion  for 
an  injunction. 

Zabriskie  and  Attorney -General,  for  complainants. 
Gilchrist  and  Bradley,  for  defendants. 

THE  CHANCELLOR.  By  an  act  of  the  legislature,  ap- 
proved on  the  8th  of  March,  1860,  the  Hoboken  Land 
and  Improvement  Company  were  authorized  to  lay  out 
and  construct  a  railroad  from  Hoboken  to  Newark,  with 
power  to  erect  and  maintain  the  necessary  viaducts  over 
the  Hackensack  and  Passaic  rivers.  Claiming  to  act  in 
pursuance  of  the  authority  thus  conferred,  the  defendants 
have  commenced  the  construction  of  a  bridge,  or  viaduct, 
for  the  purpose  of  carrying  their  railway  across  the  Hack- 


82  CASES  IN  CHANCERY. 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

ensack.  The  proprietors  of  the  bridges  over  the  rivers 
Passaic  and  Hackensaok,  a  company  incorporated  by  the 
laws  of  this  state,  have  filed  their  bill  against  the  Hoboken 
Land  and  Improvement  Company,  praying  that  the  defend- 
ants may  be  restrained  by  injunction  from  erecting  the  said 
bridge,  or  any  other  bridge,  across  the  said  river,  between  its 
mouth  and  the  place  where  Kingsland  creek  empties  into  the 
same. 

The  complainants  claim,  under  legislative  grant,  the  ex- 
clusive right  of  maintaining  a  bridge  across  the  Hackensack 
within  the  limits  above  specified.  The  defendants  deny  the 
existence  of  such  exclusive  right.  They  also  deny,  if  the 
complainants  have  such  right,  that  the  bridge  which  they 
are  constructing,  and  which  is  sought  to  be  enjoined,  is  a 
violation  of  that  right. 

The  material  issues  made  by  the  bill  and  answer  are — 

I.  Whether  the  complainants  have,  by  virtue  of  a  con- 
tract with  the  state,  the  exclusive  franchise  of  maintaining  a 
bridge  across  the  Hackensack  river,  between   its  mouth  and 
the  place  where  Kingsland  creek  empties  into  the  same,  and 
of  taking  tolls  thereon. 

II.  Whether    the    structure   which    the    defendants   are 
engaged   in   erecting   is   a   violation    of   the   complainants' 
franchise. 

The  exclusive  right  claimed  by  the  complainants,  though 
exercised  for  more  than  sixty  years — though  frequently  the 
subject  of  legal  investigation  and  legislative  consideration — 
is  now,  for  the  first  time,  made  the  subject  of  direct  judicial 
decision.  Familiar,  therefore,  as  the  subject  may  be  to  the 
profession  and  to  the  public,  it  is  proper  that  the  grounds 
of  the  claim,  and  the  numerous  objections  urged  against  its 
validity,  should  be  considered,  and,  as  far  as  may  be  by  this 
court,  settled. 

The  highway  between  Newark  and  New  York,  as  is 
well  known,  is  intersected  by  the  Passaic  and  Hackensack 
rivers.  The  importance  of  the  route,  and  the  serious 
obstacles  to  its  convenient  use  by  the  -public,  early 


MAY  TERM,  1860.  83 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

attracted  the  attention  of  the  legislature.  As  early  as  the 
20th  of  June,  1765,  an  act  was  passed  for  laying  out  a  road 
from  Newark  to  the  public  road  leading  from  Bergen  Point 
to  Powles'  Hook,  and  for  erecting  and  establishing  ferries 
across  the  rivers  Passaic  and  Hackensack.  Allinson's  Laws 
276.  Under  the  provisions  of  this  act,  the  line  of  travel  was 
opened  and  the  ferries  established. 

On  the  24th  of  November,  1790,  the  legislature,  by  an 
act  entitled  "An  act  for  building  bridges  over  the  rivers 
Passaic  and  Hackensack,  and  for  other  purposes  therein 
mentioned,"  appointed  five  commissioners,  with  special 
powers  to  carry  into  effect  the  purposes  of  the  act. 
Pamph.  Laws  685,  chap.  333.  The  commissioners  were 
authorized,  in  execution  of  the  trust  reposed  in  them,  to 
select  convenient  and  suitable  sites,  within  certain  pre- 
scribed limits,  for  the  erection  of  bridges  over  the  said 
rivers,  and  to  erect,  or  cause  to  be  erected  at  those  sites, 
bridges  of  the  description  specified  in  the  act.  They  were 
also  authorized  to  lay  out,  in  connection  with  the  said 
bridges,  a  road  four  rods  wide  from  the  court-house  in 
Newark  to  Powles'  Hook.  The  bridges  so  to  be  erected 
were  declared  to  be  toll  bridges.  The  commissioners 
were  authorized,  "  at  their  discretion,  to  let  the  eaid 
bridges  to  any  person  or  persons,  to  be  erected  and  made 
and  kept  in  good  repair  by  the  tolls  arising  therefrom;" 
and  the  said  commissioners,  or  the  persons  farming  or 
having  the  care  of  said  bridges,  were  authorized  to  demand 
and  receive  such  rates  of  toll  as  the  commissioners  should  ap- 
point and  direct  to  be  paid. 

In  order  the  better  to  carry  into  execution  the  ends  pro- 
posed by  the  act,  the  commissioners  were  further  authorized, 
at  their  discretion,  to  contract  and  agree  with  any  person  or 
persons  who  would  undertake  the  same  for  such  toll,  and  for 
so  many  years,  and  upon  such  conditions,  as,  in  their  dis- 
cretion, should  seem  expedient. 

It  was  further  enacted  that  the  bridges  to  be  built  by 
virtue  of  the.  act,  should  continue  the  property  of  the  per- 


84  CASES  IN  CHANCERY. 

Bridge  Co.  y.  Hoboken  Land  and  Improvement  Co. 

sons  therein  mentioned,  their  executors,  administrators  or  as- 
signs, for  the  term  of  ninety-nine  years  from  the  time  of  pass- 
ing the  act. 

By  the  15th  section  of  the  act  (upon  which  the  com- 
plainants' claim  of  an  exclusive  franchise  is  founded,)  it 
is  enacted  as  follows :  "  It  shall  not  be  lawful  for  any 
person  or  persons  whatsoever  to  erect,  or  cause  to  be 
erected,  any  other  bridge  or  bridges  over  or  across  the 
said  river  Passaic,  at  any  place  or  places  between  the 
mouth  of  the  said  Passaic  river  and  the  place  where  the 
brook,  commonly  called  Second  river,  (on  which  stand  the 
mills  of  Cortlandt  and  Bennett,)  now  empties  itself  into 
the  said  river  Passaic;  nor  shall  it  be  lawful  for  any  per- 
son or  persons  whatsoever  to  erect,  or  cause  to  be  erected, 
any  other  bridge  or  bridges  over  or  across  the  said  river 
Hackensack,  at  any  place  or  places  between  the  mouth 
of  the  said  Hackensack  river  and  the  place  where  Kingsland 
creek  empties  and  discharges  its  waters  into  the  said  river 
Hackensack." 

The  act  contains  various  other  provisions  relating  to 
the  rights,  duties  and  property  of  the  grantees  of  the 
franchise. 

On  the  19th  of  February,  1793,  the  commissioners,  in 
pursuance  of  the  powers  conferred  by  the  act  of  1790, 
entered  into  a  contract  in  the  form  of  a  lease  by  deed,  in- 
dented, made  and  executed  by  and  between  the  commis- 
sioners, of  the  one  part,  and  Samuel  Ogden  and  thirty -six 
others,  his  associates,  of  the  second  part,  for  building  and 
maintaining  the  said  bridges.  By  the  contract,  the  com- 
missioners demised,  granted,  and  to  farm  let,  to  the  party 
of  the  second  part,  the  bridges  to  be  erected  over  the 
rivers  Passaic  and  Hackensack,  with  the  right  of  taking 
tolls  thereon,  not  exceeding  certain  specified  rates,  for  the 
term  of  ninety-seven  years  from  and  after  the  24th  of  No- 
vember, 1792,  being  the  entire  term  for  which  the  pro- 
perty and  franchise  was  vested  in  the  commissioners  by 
the  statute.  In  consideration  of  this  grant,  the  lessees 


•       MAY  TERM,  1860.  85 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

covenanted  to  construct  the  bridges  within  the  time  lim- 
ited by  the  act,  at  the  points  and  in  the  manner  desig- 
nated by  the  commissioners  to  perform  the  duties  en- 
joined by^  the  act,  and,  at  the  expiration  of  the  term,  to 
surrender  the  bridges  and  causeways  in  good  repair  unto 
such  persons  as  may  be  by  law  authorized  to  receive  the 
same.  On  the  5th  of  November,  1798,  the  legislature,  on 
the  petition  of  the  stockholders,  extended  the  time  for 
the  completion  of  the  bridge  six  months  beyond  the  time 
originally  limited. 

By  an  act  of  the  legislature,  passed  on  the  7th  of  March, 
1797,  (Pamph.  Laws  200,)  the  stockholders  of  the  bridges, 
under  the  lease  thus  made  by  the  commissioners,  were  incor- 
porated under  the  name  of  "  The  Proprietors  of  the  Bridges 
over  the  rivers  Passaic  and  Hackensack." 

This  brief  historical  statement  presents  the  origin  of  the 
complainants'  title  to  the  exclusive  franchise  claimed  by 
them,  of  maintaining  bridges  across  the  rivers  Passaic  and 
Hackensack,  and  seemed  necessary  to  a  full  understanding 
of  the  nature  and  foundation  of  their  claim,  and  of  the  force 
of  the  objection  urged  against  it. 

The  complainants  claim  that  the  15th  section  of  the  act  of 
1790,  by  which  it  is  declared  that  it  shall  not  be  lawful  for 
any  person  or  persons  whatsoever,  to  erect,  or  cause  to  be 
erected,  any  other  bridge  or  bridges  over  or  across  the  said 
river,  &c.,  is  a  contract  on  the  part  of  the  state  which  cannot 
constitutionally  be  annulled  or  abrogated. 

To  this  claim  it  is  objected,  (1st,)  that  nothing  in  this 
act  can  operate  as  a  contract  on  the  part  of  the  state,  in- 
asmuch as  there  was  no  party  with  whom  the  contract 
could  be  made.  The  act  is  not  a  charter  of  incorpora- 
tion— it  confers  no  corporate  powers.  The  commissioners 
named  in  it  are  agents  of  the  state  exercising  a  public 
trust.  They  were  to  receive  no  personal  benefit  from  the 
act,  save  a  mere  compensation  for  their  services.  They 
were  to  account  for  the  moneys  received  by  them,  in  like 
manner  as  the  trustees  under  the  act  of  1765,  for  erecting 


86  CASES  IN  CHANCERY.  ' 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

and  establishing  ferries  across  the  rivers  Passaic  and 
Hackensack. 

All  this  is  true.  The  commissioners  named  in  the  act 
did  exercise  a  public  trust.  They  were  the  agents  of  the 
state ;  they  were  authorized  to  receive  money  by  gift,  and 
to  raise  money  by  lottery,  for  the  purpose  of  erecting  the 
bridges  proposed  to  be  built;  but  they  were  also,  by  the 
act,  invested  with  the  property  of  the  bridges  to  be  built, 
for  the  term  of  ninety-nine  years,  and  with  the  franchise 
of  taking  tolls.  They  were  authorized  to  farm  out  the 
building  of  the  bridges  and  the  franchise  of  taking  tolls 
to  others  who  would  undertake  the  work ;  the  rights  and 
privileges  of  the  parties  to  whom  the  building  and  care 
of  the  bridges  should  be  farmed  out  was  specified  in  the 
act,  and  the  faith  of  the  state  was  pledged  that  no  other 
bridge  should  be  erected  to  the  prejudice  of  the  franchise 
thus  granted  during  the  continuance  of  the  grant.  The 
contract  thus  made  by  the  commissioners,  in  pursuance  of 
the  act,  was  declared  to  be  valid  and  binding  on  the  parties 
contracting,  as  well  as  on  the  State  of  New  Jersey,  and  as 
effectual  as  if  the  same  had  been  particularly  and  expressly 
set  forth  and  enacted  in  the  law.  It  is  immaterial  whether 
the  instrument  by  which  the  public  faith  is  pledged  is  in  its 
terms  a  contract,  or  in  form  a  mere  legislative  enactment. 
In  either  event  it  is  equally  a  contract  within  the  meaning 
of  the  constitution,  and  cannot  be  annulled  or  violated  at  the 
pleasure  of  the  legislature. 

It  cannot  be  doubted  that  the  enactment  was  intended 
by  the  legislature  as  an  inducement  to  capitalists  to  em- 
bark in  the  enterprise  in  the  hope  of  eventual  remunera- 
tion, inspired  by  the  pledge  of  protection  against  compe- 
tition, and  that  it  was  so  understood  and  accepted  by 
those  who  engaged  in  the  undertaking.  The  pledge  must 
have  been  intended  for  the  benefit  of  the  parties  who 
might  contract  with  the  commissioners  to  erect  and  main- 
tain the  bridges.  It  could  otherwise  have  no  practical 
operation  whatever. 


MAY  TERM,  1860.  87 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

That  this  provision  was  regarded  by  the  legislature  1  hem- 
selves,  as  a  contract  for  the  benefit  of  the  parties  who  should 
erect  the  bridge,  is  apparent  from  the  proviso  of  the  fifteenth 
section,  by  which  it  is  provided  that  if  the  commissioners,  or 
some  person  under  them,  should  neglect,  for  the  space  of  four 
years,  to  erect  the  bridges,  in  pursuance  of  the  act,  or,  when 
erected,  to  maintain  and  support  them,  or  either  of  them,  it 
shall  be  lawful  for  the  legislature  to  repeal  or  alter  the  act. 
Nothing  can  be  more  explicit.  A  violation  of  the  under- 
taking, on  the  part  of  the  commissioners  or  their  lp?flfw*$.  shall 
absolve  the  legislature  from  all  obligation  to  observe  the 
engagement  upon  their  part. 

Again,  it  is  objected  that  the  language  of  the  act  imposes 
no  obligation  or  restriction  whatever  upon  the  legislature. 
It  does  not  declare  that  the  legislature  will  not  authorize 
another  bridge  to  be  erected  :  it  simply  declares  that  it  shall 
not  be  lawful  for  any  other  person  to  erect  another  bridge, 
which  is  a  mere  legislative  prohibition,  acting  not  upon  the 
legislature,  but  upon  the  citizen,  and  which  may  be  repealed 
by  any  subsequent  legislature.  But  the  obvious  answer  to 
this  objection,  is  that,  upon  this  construction,  the  act  is 
entirely  nugatory,  and  without  meaning.  The  rivers  Passaic 
and  Hackensack  were  then,  as  they  now  are,  navigable  rivers. 
No  bridge  could  be  erected  over  either  of  them,  except  by 
legislative  authority.  The  act  of  1790  conferred  authority 
upon  the  commissioners  and  their  grantees,  to  build  the 
bridges,  and  the  fifteenth  section  was  intended  as  an  engage- 
ment, upon  the  part  of  the  legislature,  that  the  authority 
should  be  conferred  upon  no  other.  The  plain  meaning  of 
the  clause  is,  that  it  shall  not  be  made  lawful  for  any  other 
person  to  erect  a  bridge  over  either  river.  The  language 
used,  though  perhaps  somewhat  equivocal,  is  the  usual  form 
in  which  the  public  faith  is  pledged.  It  is,  in  fact,  the  ordi- 
nary legislative  formula  in  which  exclusive  privileges  are 
granted.  Instances  of  a  precisely  similar  character  will 
be  found  in  the  supplement  to  the  charter  of  the  Trenton 


88  CASES  IN  CHANCERY. 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

Delaware  Bridge  Company,  in  1801,  Pamph.  Laws  58;  in 
the  supplement  to  the  charter  of  the  Delaware  and  Raritan 
Canal  Company,  in  1830,  Harr.  Comp.  330;  and  in  an  act 
relating  to  the  Camden  and  Amboy  Railroad  Company,  in 
1831,  Harr.  Comp.  331. 

Again,  it  is  objected  that  the  complainants  can  have  no 
vested  rights,  except  those  enumerated  or  specified  in  the 
lease  of  the  commissioners  to  the  farmers  of  the  work,  on 
the  19th  of  March,  1793,  and  that  this  exclusive  privilege  is 
not  gra*nted  or  specified  in  the  lease.  But  the  grant  of  the 
exclusive  right  emanated  not  from  the  commissioners,  but 
from  the  legislature.  It  was  conferred,  as  we  have  seen  by 
the  terms  of  the  act,  not  only  upon  the  commissioners,  but 
upon  those  by  whom  the  bridges  should  be  erected.  This 
right,  in  common  with  others,  is  conferred  by  the  act.  Duties 
and  burthens  are  imposed  by  the  act.  It  required  no  contract 
of  the  commissioners  to  confer  the  right  or  impose  the  doty. 
The  commissioners  might,  at  their  discretion,  under  the 
authority  conferred  by  the  act,  have  restricted  the  privileges 
of  their  grantees,  but,  in  the  absence  of  such  limitation,  they 
are  entitled  to  all  the  privileges  and  benefits  conferred  by  the 
act,  as  fully  as  they  were  vested  in  the  commissioners. 

This  was  the  unanimous  opinion  of  the  Supreme  Court 
in  the  case  of  The  Bridge  Proprietors  ads.  The  State,  1  Zab. 
384,  confirmed  by  the  Court  of  Errors  in  the  same  case,  2 
Zab.  593. 

It  is  further  objected,  that  if  the  exclusive  right  ever  vested 
in  the  lessees  of  the  commissioners,  it  was  forfeited  prior  to 
the  act  of  incorporation,  by  a  failure  to  complete  the  bridge 
within  the  time  limited  by  the  proviso  annexed  to  the  fifteenth 
section.  By  that  proviso,  if  the  bridge  was  not  completed 
within  four  years  from  the  passage  of  the  act,  it  was  declared 
that  it  should  be  lawful  for  the  legislature  to  repeal  or  alter 
the  act. 

By  the  act  of  5th  November,  1794,  the  time  for  the 
completion  of  the  bridge  was  extended  six  months.  It  is 


MAY  TERM,  1860.  89 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

urged  that  this  act  extending  the  time  did  not  relieve  the 
company  from  the  forfeiture  incurred  by  failing  to  com- 
plete the  bridge  within  the  period  originally  limited. 
The  obvious  answer  to  this  objection  is,  that  it  does  not 
appear  that  the  bridge  was  not  completed  within  the  time 
originally  specified.  The  act  for  the  extension  of  the 
time  was  passed  within  four  years  from  the  date  of  the 
original  act,  and  the  preamble  states  that  it  was  repre- 
sented that  the  bridges  were  nearly  completed,  but  that 
apprehensions  were  entertained  that  they  might  not  be 
entirely  finished  before  the  term  allowed  by  law  for  the 
purpose  would  expire.  But  there  is  no  evidence  whether, 
in  point  of  fact,  they  were  or  were  not  finished  within  the 
time  originally  limited.  But  if  the  fact  were  proved,  as 
alleged,  there  is  nothing  in  the  objection.  The  act  ex- 
tending the  time,  being  passed  before  any  forfeiture  by 
non-performance  was  incurred,  clearly  relieved  against  all 
consequences  of  non-performance.  There  was,  in  fact,  no 
failure  to  perform,  the  contract.  The  extension  of  the 
time  for  performance  by  the  act  of  1794  operated  precisely 
as  if  the  time  thus  extended  had  been  limited  in  the  original 
act. 

Lastly,  it  is  urged  that  the  complainants'  right,  if  it 
ever  vested  in  them,  has  been  forfeited  by  their  consent 
to  the  construction  of  other  bridges  across  the  river. 
There  is  nothing  whatever  in  the  objection.  The  right 
remains,  except  so  far  as  it  has  been  parted  with  by  the 
complainants.  There  is  no  conceivable  reason  why  a 
corporation,  having  the  exclusive  right  of  way  across  a 
river,  should  forfeit  the  right  by  consenting  that  one 
bridge  should,  be  constructed,  any  more  than  that  the 
owner  of  laud  should  forfeit  his  right  to  the  soil,  because  he 
permits  another  to  have  a  right  of  way  across  it.  His  right 
remains  perfect,  except  so  far  as  he  has  voluntarily  consented 
to  part  with  it. 

I  entertain   no  doubt  that  all  the  rights  and  privileges 


90  CASES  IN  CHANCERY. 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

conferred  by  the  act  of  1790,  passed  under  the  contract  of 
the  commissioners  to  their  lessees — not  by  the  terms  of 
the  contract,  but  by  force  and  operation  of  the  act  itself; 
that  they  continued  in  the  company  under  the  act  of 
incorporation ;  and  that  they  are  now,  for  aught  that 
appears  in  this  case,  in  the  complainants,  as  fully  and 
effectually  as  they  were  originally  conferred  by  the  act,  ex- 
cept so  far  as  they  have  been  parted  with  by  the  voluntary 
act  of  the  corporation. 

I  am  of  opinion,  therefore,  that  the  proprietors  of  the 
bridges  over  the  rivers  Passaic  and  Hackensack  have,  by  con- 
tract with  the  state,  the  exclusive  franchise  of  maintaining 
said  bridges,  and  taking  tolls  thereon,  and  that  such  contract 
is  within  the  protectiou  of  that  provision  of  the  constitution 
which  declares  that  no  law  shall  be  passed  impairing  the  ob- 
ligation of  contracts. 

The  remaining  inquiry  is,  whether  the  structure  which 
the  defendants  are  erecting  is  a  violation  of  the  complainants' 
right. 

The  act  of  1860,  under  which  the  defendants  are  acting, 
authorized  them  to  lay  out,  and  construct  and  operate,  a 
railroad  from  Hoboken  to  Newark,  with  power  to  erect 
and  maintain  the  necessary  viaducts  over  the  Hackensack 
and  Passaic  rivers.  The  defendants,  by  their  answer, 
allege  that  the  bridge  which  they  are  erecting  is  solely  for 
the  purpose  of  completing  their  railroad  as  authorized  by 
.the  act.  That  it  will  be  so  constructed  that  no  foot  pas- 
senger or  animal,  nor  any  vehicle  or  carriage  of  any  kind 
.known  or  in  use  in  the  year  1790,  (the  date  of  the  com- 
plainants' grant,)  can  safely  cross  it ;  that  the  bridge  is 
.being  constructed,  and  is  intended  to  be  used  exclusively 
as  a  viaduct  .for  their  railway,  for  the  passage  of  locomo- 
,tives,  engines  and  railroad  cars  over  the  river,  in  their 
.transit  between  Newark  and  Hoboken ;  and  that  the 
engines  and  cars  cannot  cross  the  river  upon  the  bridge 
,of  the  complainants,  nor  upon  any  bridge  known  or  used  in 
1790. 


MAY  TERM,  1860.  91 

Bridge  Go.  v.  Uoboken  Land  and  Improvement  Co. 

Iii  terms,  the  grant  of  the  complainants'  franchise  pro- 
hibits the  building  of  any  bridge  whatever  across  the 
river.  But  every  bridge  built  within  the  prohibited  limits 
is  not  necessarily  a  violation  of  the  grant.  The  com- 
plainants have  not  a  monopoly  of  building  bridges.  They 
have  the  right  of  building  one  bridge,  and  the  right  of 
taking  tolls  thereon.  The  prohibition  of  other  bridges 
was  designed  to  prevent  competition,  and  to  give  to  the 
complainants  the  exclusive  franchise  of  taking  tolls  within 
the  limits  specified.  It  is  the  exclusive  right  of  taking 
tolls,  not  of  having  a  bridge,  that  constitutes  the  value  of 
the  franchise.  Whether,  therefore,  a  bridge  erected  acroas 
the  liver  is  an  infraction  of  the  plaintiffs'  franchise,  must 
depend  upon  the  purpose  to  which  it  is  to  be  applied.  The 
structure  itself  does  not  detract  from  the  value  of  the  fran- 
chise. The  construction  of  an  aqueduct  for  the  passage  of  a 
canal  or  of  water-pipes  across  the  river,  though  a  bridge, 
and  within  the  terms  of  the  prohibition,  would  be  no  viola- 
tion of  the  grant.  Such  structure  clearly  was  not  within 
the  contemplation  of  the  contracting  parties. 

To  determine  the  true  construction  of  the  contract,  re- 
course must  be  had  to  the  subject  of  the  contract,  and  to  the 
intent  and  particular  objects  of  the  grant. 

The  legislature,  by  the  act  of  1790,  were  making  pro- 
vision for  increasing  the  facilities  of  communication  be- 
tween Newark  and  Powles'  Hook  by  the  ordinary  methods 
of  travel  upon  the  public  highway.  Provision  was  made 
for  opening  a  new  road,  and  substituting  bridges  for  ferries 
upon  the  route.  To  the  persons  undertaking  the  work,  a 
grant  was  made  of  the  frauchise  of  building  and  having 
the  bridges,  and  of  taking  tolls  thereon.  The  character 
of  the  bridges  to  be  built  was  adapted  to  the  modes  of 
travel  then  known  and  used.  The  franchise  of  taking 
tolls  was  limited  to  the  same  objects.  The  lessees  are 
authorized  to  take  tolls  for  foot  passengers,  persons  on 
horseback,  wheel  carriages  and  sleighs  drawn  by  horses 
and  oxen,  and  for  domestic  animals.  Since  the  grant  of 


92  CASES  IN  CHANCERY. 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

the  complainants'  franchise,  a  new  motive  power  has  been 
introduced,  with  new  appliances  for  transportation  by  en- 
gines and  cars,  requiring  a  new  description  of  track,  totally 
dissimilar  in  character  from  the  ordinary  highways  in  use  in 
1790.  The  accommodation  of  this  new  character  of  road 
and  means  of  transportation  could  not  have  been  within 
the  contemplation  of  the  legislature  in  the  grant  of  the 
franchise.  The  complainants  have  no  franchise  of  taking 
tolls  for  locomotives  or  cars.  The  franchise  cannot,  by 
implication  or  construction,  be  extended  to  include  them. 
The  grant  in  this  particular,  as  in  all  others,  must  be  con- 
strued strictly.  The  Proprietors  of  the  Stourbridge  Canal  v. 
Wheely,  2  Barn.  &  Ad.  792. 

Again,  the  character  and  description  of  the  bridges  to 
be  built  by  the  complainants  are  adapted  only  to  the 
modes  of  travel  then  known  and  used  upon  the  ordinary 
highways.  Nor  have  the  complainants  any  right  to  adapt 
their  bridges  to  the  accommodation  of  railroad  travel. 
By  the  terms  of  the  lease,  the  bridges  specified  in  the  act 
and  agreement  are  to  be  kept  in  repair,  and  are  to  be  de- 
livered up  at  the  expiration  of  the  lease.  The  proprietors 
have  no  authority  to  convert  the  causeway  and  bridges  to 
the  purposes  of  a  railway.  The  two  methods  of  travel 
upon  the  same  bridge  are  incompatible  with  public  safety 
and  detrimental  to  the  public  interests.  If  converted  to 
the  purposes  of  a  railway,  the  bridge  must  be  abandoned 
or  remain  comparatively  useless  for  the'  purposes  of  ordi- 
nary travel,  thus  defeating  the  very  object  for  which  the 
bridge  was  erected  and  the  franchise  granted,  viz.,  the 
accommodation  of  travel  upon  ordinary  highways.  To 
guard  against  this  evil,  the  legislature,  when  conferring 
power  upon  the  New  Jersey  Railroad  Company  to  pur- 
chase the  capital  stock  of  the  turnpike  roads  and  bridges 
on  the  route  of  their  road,  coupled  with  it  a  proviso,  that 
the  Newark  turnpike,  and  the  bridges  over  the  rivers 
Hackensack,  Passaic  and  Raritan,  should  be  preserved 
without  obstruction  as  public  roads,  as  heretofore.  The 


MAY  TERM,  1860.  93 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

complainants  are  thus  prevented  from  maintaining  a  bridge 
for  the  accommodation  of  railway  travel.  They  have  neither 
the  franchise  of  having  a  railroad  bridge  nor  of  taking  tolls 
from  railway  passengers. 

The  design  of  the  act,  moreover,  was  to  accommodate 
the  entire  traveling  public.  The  bridges  are  declared  to 
be  a  public  highway,  free  for  all  citizens  to  pass  over, 
on  paying  the  accustomed  toll.  But  the  bridges  are  free 
only  to  those  traveling  by  usual  and  known  methods 
upon  the  public  highway.  They  are  not  free  to  the  great 
mass  of  the  traveling  public.  The  great  torrent  of  rail- 
road travel  must  seek  another  channel.  The  complain- 
ants are  neither  required  nor  allowed  to  accommodate  it. 
Aside  from  the  restrictions  which  have  been  imposed 
upon  them  by  the  terms  of  their  contract  and  by  legisla- 
tive enactment,  they  never  would  have  supposed  that  they 
were  required  to  furnish  facilities  for  a  railway,  or  for 
locomotives  and  trains  of  cars  to  cross  the  bridges.  It 
was  not  within  the  scope  of  their  contract.  If  the 
bridge  proprietors  were  not  bound  to  accommodate  the 
railway  traffic,  were  the  legislature  restrained  by  the  terms 
of  the  grant  from  providing  facilities  for  railroad  travel  ? 
The  bridge  company  were  required  to  accommodate  all 
travel  upon  the  public  highway.  From  these  travelers 
they  bad  the  exclusive  franchise  of  taking  toll.  The 
legislature  engaged  that  no  other  bridge  to  accommodate 
that  character  of  travel  should  be  built,  and  that  the  whole 
of  it  should  enure  to  the  benefit  of  the  complainants. 
But  they  did  not  oblige  themselves  to  compel  travelers 
to  adopt  that  mode  of  traveling,  nor  deprive  Chemselves 
of  the  right  of  sanctioning  better  and  more  expeditious 
methods.  Applying  to  this  contract  the  ordinary  rules  of 
interpretation  ;  having  regard  to  the  subject  matter  of 
the  contract  itself;  considering  that  it  related  solely  to 
the  travel  upon  ordinary  highways  by  methods  then 
known  and  used,  and  that  the  complainants'  franchise 
extended  only  to  such  travel,  the  construction  of  a  rail- 

VOL.  II.  F 


94  CASES  IN  CHANCERY. 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

road  bridge  for  the  sole  accommodation  of  railroad  travel 
cannot  be  deemed  an  infringement  of  the  complainants' 
rights. 

Again,  the  complainants'  franchise  consists  in  the  right 
of  taking  toll  for  crossing  the  river.  But  the  defendants' 
structure  is  not  a  toll  bridge.  They  have  no  franchise  of 
taking  tolls.  They  have  no  right  to  charge  for  crossing 
the  river,  any  more  than  if  it  were  not  in  existence.  The 
structure  which  they  are  erecting  is  not  a  mere  connection 
between  the  opposite  shores — it  is  part  of  an  extended 
line  of  railway,  connecting  distant  points,  over  which  the 
defendants  are  to  transport  passengers  at  a  stipulated  rate. 
Nor  is  it  a  free  bridge,  by  which  parties  may  evade  paying 
toll  upon  the  complainants'  bridge,  to  the  prejudice  of 
their  franchise.  Its  character  and  purpose  are,  in  fact, 
essentially  different  from  that  of  a  bridge  used  merely  as  a 
connecting  link  for  the  transfer  of  passengers  between  the 
opposite  shores  of  a  river. 

Public  grants  are  to  be  strictly  construed.  Contrary  to 
the  rule  adopted  in  the  case  of  private  contracts,  they  are 
to  be  taken  most  strongly  against  the  grantee,  and  in 
favor  of  the  public.  If  there  be  a  doubt  as  to  the  extent 
of  the  grant,  the  doubt  is  resolved  in  favor  of  the  public. 
This  is  especially  true  of  all  grants  which,  like  the 
present,  narrow  the  powers  or  abridge  the  functions  of 
government.  This  grant  is  in  derogation  of  public  right. 
It  restrains  the  sovereign  power.  It  narrows  the  exercise 
of  the  great  duty,  which  the  sovereign  owes  the  people,  of 
furnishing  convenient  highways. 

In  the  case  of  The  Mohawk  Bridge  Co.  v.  The  Utica  and 
Schenectady  Railroad  Co.,  6  Paige  564,  the  bridge  company 
claimed  the  exclusive  right  to  convey  passengers  across 
the  river — the  right  extending  one  mile  above  and  below 
the  bridge.  The  act,  in  terms,  restrained  only  the  erec- 
tion of  ferries  within  those  limits,  but  the  complainants 
claimed  that  the  prohibition  extended  to  bridges  or  to 
any  mode  of  transporting  freight  and  passengers  across 


MAY  TERM,  1860.  95 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

the  river.  It  was  held  that  the  prohibition  of  erecting  fer- 
ries did  not  prevent  the  erection  of  a  bridge.  "  Much  less 
(says  the  Chancellor)  is  the  legislature  deprived  of  the  power 
to  provide  for  the  conveyance  of  freight  or  passengers  from 
one  part  of  the  state  to  another,  by  an  improvement  which 
was  entirely  unknown  at  the  time  when  the  grant  to  the 
bridge  company  was  made.  And  if  that  grant  had,  in  terms, 
given  to  the  corporation  the  exclusive  right  of  erecting  a  toll- 
bridge  across  the  river  at  Schenectady,  this  subsequent  grant 
to  the  railroad  company  to  cross  the  river  with  their  railway, 
from  Schenectady  to  Utica,  and  to  transport  passengers  there- 
on, in  the  ordinary  course  of  their  business,  in  the  convey- 
ance of  travelers  from  one  place  to  another,  would  not  have 
been  an  infringement  of  the  privileges  conferred  by  such 
prior  grant,  as  the  railroad  bridge  could  not  be  a  toll  bridge 
within  the  intent  and  meaning  of  the  grant  to  the  first  com- 
pany. Grants  of  exclusive  privileges  being  in  derogation  of 
public  rights  belonging  to  the  state,  or  to  its  citizens 
generally,  they  must  be  construed  strictly,  and  with 
reference  to  the  intent  and  particular  objects  of  the  grant." 
This  case  is  cited  with  approbation  by  the  court,  in 
Thompson  v.  The  N.  Y.  and  Harlem  Railroad  Co.,  3  Sandf. 
Ch.  R.  657. 

In  McRee  v.  The  Wilmington  and  Raleigh  Railroad  Co., 
2  Jones'  Law  R.  186,  it  was  held,  by  the  Supreme  Court 
of  North  Carolina,  that  the  franchise  of  having  a  bridge 
and  taking  tolls,  was  not  violated  by  extending  a  railroad 
across  the  river.  The  case,  in  many  of  its  essential 
features,  was  like  the  present.  The  legislature  of  North 
Carolina,  in  the  year  1766,  had  granted  to  an  individual 
and  his  assigns,  the  franchise  of  building  a  bridge  across 
the  northeast  branch  of  Cape  Fear  river,  and  the  bridge, 
when  built,  was  declared  to  be  vested  in  the  grantee,  his 
heirs  and  assigns  forever.  The  act  provides  that  when 
the  bridge  was  built,  it  should  not  be  lawful  for  any 
person  whatever  to  keep  any  ferry,  build  any  bridge,  or  set 


96  CASES  IN  CHANCERY. 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

any  person  or  persons,  carriage  or  carriages,  cattle,  hogs,  or 
sheep,  over  said  river,  for  fee  or  reward,  under  the  penalty 
of  twenty  shillings.  The  court  decided  that,  notwithstanding 
the  grant  of  the  franchise  of  taking  tolls,  and  notwithstand- 
ing the  provision  of  the  act,  that  it  should  not  be  lawful  to 
build  any  other  bridge  across  the  river,  the  legislature  had 
the  power  to  grant  the  defendants  a  right  to  construct  a  rail- 
road across  the  river,  and  to  consider  the  transit  over  the 
river  as  a  part  of  the  road. 

It  is  material  to  observe  that  the  structure  of  the  defend- 
ants is  not  designed  as  an  evasion  of,  or  fraud  upon  the  rights 
of  the  complainants.  It  is  not  an  attempt  to  carry  passengers 
across  the  river,  either  free  or  for  toll,  in  evasion  of  the  com- 
plainants' franchise.  The  avowed  purpose  of  the  defendants 
is  to  construct  and  complete  a  continuous  line  of  road  from 
Newark  to  Hoboken,  and  to  transport  passengers  over  the 
entire  route.  The  diversion  of  travel  from  the  complainants7 
bridge,  and  the  consequent  loss  of  tolls,  is  an  incidental  con- 
sequence of  opening  a  new  route  of  travel,  of  which  the  com- 
plainants have  no  legal  right  to  complain. 

But  the  complainants  do  not  rely  upon  the  act  of  seven- 
teen hundred  and  ninety  alone,  to  support  their  claim.  It 
is  charged,  in  their  bill  of  complaint,  that  the  New  Jersey 
Railroad  Company  purchased,  at  a  great  advance  over  the 
par  value,  and  now  hold  over  nine  hundred  and  fifty 
shares  of  the  one  thousand  shares  that  constitute  the 
capital  stock  of  the  bridge  company ;  that  in  the  contract 
giving  to  the  railroad  company  permission  to  erect  their 
bridge  across  the  Hackensack  and  Passaic,  large  advan- 
tages were  secured  to  the  other  stockholders  of  the  bridge 
company ;  that  the  railroad  company  made  such  purchase 
and  contract  on  the  faith  of  the  contract  made  by  the 
btate  with  the  bridge  company,  believing  that  the  contract 
of  the  state  would  be  observed,  and  could  not  be  violated, 
and  that  no  other  bridge  could  be  erected  within  said 
limits,  so  as  to  interfere  with  the  business  and  income  of 


MAY  TERM,  1860.  97 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

the  bridge  company  or  with  the  business  and  income 
of  the  railroad  company  without  the  consent  of  the  com- 
plainants, unless  upon  full  compensation  to  them  and  to 
the  railroad  company  for  the  damage  and  loss  which  each 
of  them  might  sustain  by  the  erection  of  a  new  bridge. 

This  charge  doubtless  discloses  the  gravamen  of  the 
complainants'  bill.  The  injury  which  they  apprehend  is 
not  so  much  the  loss  of  tolls  by  the  bridge  company  as 
the  diversion  of  travel  and  traffic  from  the  railroad.  The 
complaint  is  virtually  that  of  the  railroad  company,  who 
insist  that  by  the  purchase  of  the  franchise  granted  by 
the  legislature  to  the  bridge  company  of  taking  tolls  for 
crossing  the  river  by  travelers  upon  the  ordinary  high- 
way, they  have  secured  the  monopoly  of  the  right  of  way 
for  a  railroad  across  the  rivers.  Can  such  claim  be  well 
founded  ?  Could  such  result  have  been  within  the  con- 
templation of  the  legislature?  Was  it  within  the  design 
or  purpose  of  the  grant?  And  if  the  claim  be  sustained, 
will  it  not  be  extorting  from  the  legislature,  under  color 
of  a  grant  for  a  totally  different  purpose,  exclusive  privi- 
leges which  never  would  have  been  conferred  by  direct 
legislation?  It  is  charged,  in  the  complainants'  bill,  that 
the  contract  with  the  bridge  company  was  authorized  by 
the  legislature  for  the  express  purpose  of  giving  to  the 
railroad  company  the  control  of  the  right  of  way.  If  such 
was  the  design  of  the  legislature,  it  would  have  been  easy 
and  natural  to  make  the  grant  in  express  terms.  A  totally 
different  design  is  patent  upon  the  face  of  the  act.  The 
bridge  company,  doubtless  then  as  now,  claimed  that  the 
construction  of  a  railroad  across  the  river  would  be  an 
infringement  of  their  franchise.  The  legislature  naturally 
regarded  it  as  just  and  equitable  that  compensation  should 
be  made  for  any  loss  they  might  sustain  by  the  grant  of 
the  railroad  charter.  Doubts  existed  as  to  the  extent  of 
the  complainants'  franchise,  and  the  railroad  company 
may  have  naturally  believed  that  it  would  be  for  their 
interest  to  purchase  it.  They  may  have  hoped  thus  to 


98  CASES  IN  CHANCERY. 

Bridge  Co.  v.  Hobokeu  Land  and  Improvement  Co. 

receive  the  advantage  which  they  now  claim  ;  but  that 
such  result  was  within  the  contemplation  of  the  legisla- 
ture is  not  apparent  upon  the  act,  and  cannot  be  inferred 
from  it.  If  the  railroad  company  believed,  as  it  is  charged 
in  the  bill,  that  by  the  grant  they  acquired  the  control  of 
the  right  of  way  for  railroads,  they  suffer  the  consequences 
of  their  own  mistake ;  but  their  belief  cannot  tend  to  en- 
large the  franchise  or  change  the  character  of  the  grant. 

The  complainants  also  insist  that  their  rights  have  been 
repeatedly  recognized  by  the  legislature,  and  that,  by  the 
act  of  1860,  it  is  expressly  provided  that  compensation 
shall  be  made  for  their  franchises,  and  that  the  defendants 
are  prohibited  from  constructing  their  bridges  until  such 
compensation  is  first  made  or  tendered. 

The  legislature  have,  on  frequent  occasions,  manifested 
a  laudable  regard  for  the  public  faith  by  sedulously 
guarding  the  chartered  rights  of  the  complainants.  To 
this  end  there  have  been  inserted  in  various  legislative 
grants  express  provisions,  that  nothing  therein  contained 
should  be  construed,  in  any  manner,  to  impair  their  rights 
or  privileges  or  other  clauses  designed  to  preserve  their 
rights  inviolate.  But  these  and  similar  provisions  are  de- 
signed simply  to  protect  existing  rights,  not  to  create  or 
enlarge  them.  The  character  and  extent  of  the  rights  are 
to  be  sought  for  in  the  grant  itself  and  in  express  legisla- 
tive recognition  of  its  limits.  Such  recognition,  it  is 
believed,  will  be  nowhere  found,  except  it  be  in  the  act 
of  1860,  which  confers  upon  the  defendants  power  to  con- 
struct their  road.  The  legislature  had  an  undoubted 
right,  in  conferring  that  power,  to  impose  upon  the  de- 
fendants such  terms  as  they  saw  fit.  The  grant  of  power 
is  exceedingly  broad  ;  and  if,  in  making  it,  the  legislature 
deemed  it  just  and  equitable  to  require  that  the  de- 
fendants should  compensate  the  complainants,  not  only 
for  the  value  of  their  franchises,  but  also  for  all  loss 
or  damage  which  they  or  their  grantees,  the  New 
Jersey  Railroad  and  Transportation  Company,  might 


MAY  TERM,  1860.  99 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

sustain  by  the  construction  of  a  new  road,  and  the  consequent 
diversion  of  travel,  the  requisition  is  binding,  and  the  com- 
plainants are  entitled  to  the  aid  of  this  court  to  enforce  a  com- 
pliance with  its  terms. 

A  casual  reading  of  the  law  seems  to  justify  the  in- 
ference that  the  legislature  intended  that  the  Hoboken 
Land  and  Improvement  Company,  as  a  compensation 
for  the  rights  and  property  of  the  bridge  company  and 
of  the  New  Jersey  Railroad  Company,  which  they  were 
authorized  to  appropriate,  should  pay  not  only  for  all 
the  rights  and  franchises  owned,  but  for  all  claimed  by 
them.  But  no  such  inference  can  be  legitimately  made 
in  the  absence  of  an  express  grant.  Upon  the  most 
careful  consideration  of  the  law,  I  find  no  such  pro- 
vision. The  legislature  have,  by  the  terms  of  the  act, 
manifested  a  clear  intention  to  confer  all  necessary 
power  to  construct  the  road,  and  that  no  property,  right,  or 
franchise  of  the  complainants  or  of  the  railroad  company 
should  stand  in  the  way  of  its  completion.  On  the  other 
hand,  there  is  an  equally  clear  intention  that  the  defendants 
should  make  compensation  for  all  property,  rights  and  fran- 
chises so  taken  and  appropriated. 

The  provisos  of  the  1st  and  8th  sections  of  the  act  re- 
serve to  the  complainants  their  right  of  compensation 
under  the  5th  and  6th  sections.  The  8th  section  author- 
izes the  defendants  to  run  their  engines  and  cars  upon 
any  bridge  of  any  corporation,  and  the  application  of  the 
proviso  to  that  section  is  sufficiently  obvious.  The  pro- 
viso of  the  1st  section  authorizes  the  defendants,  in  case 
they  are  enjoined  or  prevented  by  legal  proceedings  from 
constructing  and  using  their  own  bridges,  to  use  the 
bridges  and  track  of  the  New  Jersey  Railroad  Company, 
"  reserving,  notwithstanding  such  consent"  to  the  complain- 
ants their  right  of  compensation  under  the  5th  and  6th 
sections.  No  consent  had  previously  been  mentioned. 
The  provision,  as  it  stands,  is  unintelligible.  The  de- 
fendants, by  their  answer,  explain  the  incongruity  by 


100  CASES  IN  CHANCERY. 

Bridge  Co.  v.  Hoboken  Land  and  Improvement  Co. 

stating  that  the  section,  as  it  originally  stood,  required 
the  consent  of  the  railroad  company  to  the  use  of  their 
road ;  and  the  last  clause  was  inserted  to  guard  against 
such  consent  by  the  railroad  company  operating  to  the 
prejudice  of  the  bridge  company;  but  that  the  clause  re- 
quiring the  consent  of  the  railroad  company  being 
stricken  out,  the  clause  protecting  the  rights  of  the 
bridge  company  was  inadvertently  and  inappropriately 
retained.  This  explanation  in  no  way  affects  the  infer- 
ence which  the  complainants  draw  from  the  language  of 
the  section.  They  insist  that,  by  this  section,  compensa- 
tion is  reserved  to  the  complainants  in  case  the  defend- 
ants use  the  track  of  the  New  Jersey  Railroad  Company 
for  the  passage  of  their  cars;  and  that  the  complainants 
can  be  entitled  to  no  such  compensation,  unless  the  use 
of  the  railroad  track,  and  the  transportation  of  passengers 
thereon  was  regarded  by  the  legislature  as  a  violation  of 
their  franchise,  for  which  they  intended  to  provide  compen- 
sation. 

But  it  must  be  borne  in  mind  that  the  act  reserves  to 
the  bridge  company  only  their  right  of  compensation 
under  the  5th  and  6th  sections  of  the  act ;  and  it  is  too 
clear  to  admit  of  question  that  those  sections  provide 
compensation  only  for  rights  owned,  not  for  rights  claimed. 
They  do,  indeed,  provide  a  way  in  which  persons,  either 
owning  or  claiming  rights,  may  have  those  rights  adjudi- 
cated. But  the  commissioners  appointed  to  make  the 
valuation  are  to  report  "  what  (if  any  exist)  and  how 
much,  and  what  part  of  any  rights,  privileges,  franchises 
and  property  are  necessary  to  be  taken  and  appropriated, 
exercised  or  used  for  the  purposes  of  the  act,  and  to  make 
a  just  and  equitable  assessment  or  appraisement  of  the 
value  of  (if  any  such  exist)  the  said  rights,  privileges, 
franchises  and  property,  or  so  much  thereof  as  may  be 
necessary." 

The  plain  language  of  the  act,  as  well  as  the  manifest 
reason  and  justice  of  the  thing,  requires  that  the  defend- 


MAY  TERM,  1860.  101 

Cleveland  v.  Havens. 

ants  should  make  compensation,  not  for  franchises  claimed, 
but  for  franchises  owned — not  for  imaginary,  but  for  existing 
rights. 

I  find  nothing  in  the  act  to  sustain  the  claim  of  the  com- 
plainants. The  defendants  have  not  entered  upon  their  land, 
nor  taken  their  bridges.  They  have  taken  no  right,  privi- 
lege, or  franchise  of  the  complainants,  for  which  they  were 
required  to  make  or  tender  compensation. 

I  am  of  opinion,  therefore,  that  the  motion  for  an  injunc- 
tion must  be  denied,  and  the  complainants'  bill  dismissed, 
with  costs. 

AFFIRMED,  2  Beas.  503. 

CITED  in  Del.  &  Rar.  Can.  &G.&A.  E.  E.  &  Tr.  Co.  v.  Ear.  &  Del  Bay 
E.  K  Co.,  1  C.  E.  Or.  363,  373 ;  Mor.  Can.  &  Bkg.  Co.  v.  Cent.  E.  E.  of 
N.  J.,  1  O.  E.  Gr.  419,  436;  Atfy-Gen'l  v.  Del.  &  Bound  Brook  E.  E. 
Co.,  12  C.  E  Or.  19;  Slate  v.  Blake,  6  Vr.  215. 


FRANCIS  A.  CLEVELAND  et  ux.  vs.  CHARLES  G.  HAVENS, 
Executor,  &c.,  and  others. 

1.  Where  the  terms  of  a  bequest  of  personalty  are  such  as  would,  in  a 
devise  of  real  estate,  create  an  estate  tail  in  the  devisee,  it  operates  as  an 
absolute  gift  of  the  personalty,  and  a  bequest  over  on  the  failure  of  issue 
of  the  first  taker,  is  void. 

2.  Where  the  gift  is  to  A  and  his  issue,  or  to  A  and  the  heirs  of  his 
body,  and  the  limitation  over  is  upon  an  indefinite  failure  of  issue,  the 
estate  vests  absolutely  in  the  first  taker. 

3.  But  where  the  limitation  over  is  upon  a  definite,  not  an  indefinite 
failure  of  issue,  the  first  legatee  takes  an  estate  for  life  only,  and  the  lim- 
itation over  is  good.     And  it  is  immaterial,  in  such  case,  whether  the  gift 
to  the  first  taker  be  of  the  subject  itself,  or  only  of  the  use. 

4.  The  law  requires  wills,  both  of  real  and  personal  estate,  to  be  in 
writing,  and  parol  evidence  is  not  admissible  to  add  to,  contradict,  or  vary 
their  contents. 

Lewis  R.  Grover,  for  complainants. 

THE  CHANCELLOR.  The  bill  is  filed  by  a  legatee  under 
the  will  of  Eliza  H.  Marsiglia,  to  settle  the  construction  of 
a  bequest  contained  in  the  will,  and  to  enforce  the  pay- 
ment of  the  legacy.  The  bequest  ia  as  follows:  ../J^  give, 


102  CASES  IN  CHANCERY. 

Cleveland  v.  Havens. 

devise,  and  bequeath  the  remaining  one  equal  half  part 
of  all  the  rest,  residue,  and  remainder  of  said  trust  prop- 
erty, and  of  any  and  all  other  property,  of  every  kind 
and  description,  belonging  to  me  at  the  time  of  my  de- 
cease, to  my  said  daughter  Catharine  and  to  her  lawful 
issue.  But  in  case  of  the  death  of  my  said  daughter 
Catharine  without  leaving  lawful  issue  living  at  the  time 
of  her  decease,  then  I  give,  devise,  and  bequeath  the  same 
to  my  said  daughter  Ada  and  to  her  lawful  issue.  And 
should  both  of  my  said  daughters  so  die  without  leaving 
lawful  issue  surviving,  then  I  give,  devise,  and  bequeath 
the  same,  or  so  much  thereof  as  may  remain,  to  John 
Pienezoe  and  Francis  Chanwand,  (my  children  by  my 
former  husband,  John  J.  Chanwand,)  equally,  and  to  their 
heirs  forever." 

The  property  disposed  of  by  the  bequest  was  the  sum  of 
six  hundred  dollars  in  money. 

The  will  purports  to  give  a  legacy  to  Catharine,  the 
daughter  of  the  testatrix,  and,  on  her  death,  to  her  issue; 
but  if  she  died  without  issue  living  at  the  time  of  her 
death,  then  over  (to  Ada,  another  daughter  of  the  testa- 
trix.) 

It  is  claimed,  on  the  part  of  the  complainant,  that,  under 
the  terms  of  the  gift,  the  legacy  vests  absolutely  in  Catha- 
rine, the  first  legatee. 

Where  the  terms  of  a  bequest  of  personalty  are  such  aa 
would,  in  a  devise  of  real  estate,  create  an  estate  tail  in  the 
devisee,  it  operates  as  an  absolute  gift  of  the  personalty,  and 
a  bequest  over,  on  the  failure  of  issue  of  the  first  taker,  is 
void.  Lyon  v.  Mitchel,  1  Mad.  R.  467,  (1st  Am.  ed.)  253 ; 
2  Roper  on  Leg.  1520,  c  22,  §  1. 

When  the  gift  is  to  A  and  his  issue,  or  to  A  and  tha 
heirs  of  his  body,  and  the  limitation  over  is  upon  aa 
indefinite  failure,  the  estate  vests  absolutely  in  the  first 
taker. 

But  when  the  limitation  over  is  upon  a  definite,  not  aa 
indefinite  failure  of  issue,  the  first  legatee  takes  tv  ".state  for 
life  only,  and  the  limitation  over  is  good. 


MAY  TERM,  1860.  103 

Cleveland  v.  Havens. 

In  the  present  case  the  bequest  over  is  made  upon  a 
definite  failure  of  issue.  It  is  upon  the  death  of  Catha- 
rine without  leaving  lawful  issue  living  at  the  time  of  her 
death.  Terms  cannot  be  more  explicit.  The  limitation 
over  is  upon  a  definite  failure  of  issue.  The  bequest  over 
in  such  case  will  be  supported.  The  first  legatee  takes 
but  a  life  interest,  and  it  is  immaterial  whether  the  gift 
be  of  the  subject  itself  or  only  of  the  use.  Hyde  v.  Parrott, 
1  P.  Wms.  1;  Tissen-v.  Tissen,  Ib.  502;  Upwell  v.  Halsey, 
Ib.  652. 

The  terms  of  the  will  admit  no  doubt  that  the  complain- 
ant is  entitled  only  to  the  use  of  the  money  for  life;  that 
upon  her  death  leaving  issue  the  principal  vests  absolutely  in 
the  children,  and  in  default  of  issue,  then  over  to  the  other 
legatees  named  in  the  will. 

The  case  is  not  altered  by  the  answer  of  the  executor. 
His  consent  to  a  decree  against  him  cannot  affect  the 
rights  of  the  real  parties  in  interest.  He  is  a  mere  trustee. 
He  takes  no  interest  under  this  part  of  the  will.  The 
parties  really  in  interest  are  those  to  whom  the  money  is 
given  upon  the  death  of  the  complainant,  and  though 
they  fail  to  appear  and  make  defence,  the  court  will  not 
decree  against  them  contrary  to  the  clear  right  of  the 
case.  But  their  interest  is  contingent  only,  and  it  may 
well  be  doubted  whether,  even  with  their  consent,  the 
court  would  be  justified  in  making  the  decree  prayed  for, 
or  whether  such  decree,  if  made,  would  afford  protection  to 
the  executor  against  the  claims  of  those  whose  interests  may, 
under  the  provisions  of  the  will,  accrue  hereafter. 

The  executor  not  only  assents  to  the  decree  as  prayed 
for,  but  he  also  admits  the  truth  of  sundry  charges  in  the  bill, 
and  states  facts,  the  benefit  of  which  is  claimed  by  the  com- 
plainant as  establishing  the  truth  of  the  charges  made  by  the 
bill. 

It  is  stated,  among  other  things,  by  the  answer  of  the 
executor,  that  he  drew  the  will  in  question  at  the  request 
and  under  written  instructions  from  the  testatrix,  and 


104  CASES  IN  CHANCERY. 

Cleveland  v.  Havens. 

that  he  was  instructed  to  give  the  trust  money  in  the  bill 
mentioned,  being  the  sum  of  $600,  then  in  his  hands  as 
trustee,  absolutely  to  Catharine,  one  of  the  complainants ; 
that  he  intended  so  to  draw  the  will ;  he  knows  the  testa- 
trix so  understood  the  will  to  read,  and  the  executor 
himself  so  construed  it,  and  he  proffers  himself  ready  to 
pay  the  money  to  the  complainants  under  the  order  and  pro- 
tection of  the  court. 

Aside  from  all  exceptions  that  might  be  taken  to  these 
statements  and  admissions  on  the  part  of  the  executor,  as 
evidence  to  affect  the  rights  of  parties  having  interests 
under  the  provisions  of  the  will,  treating  it  as  legal  and 
competent  evidence  in  i  the  cause,  is  the  evidence  in  itself 
competent  ?  It  embraces  two  objects.  Its  purpose  is  to 
prove — 1.  That  the  will  was  not  drawn  in  pursuance  of  the 
written  instructions  given  by  the  testatrix.  2.  That  the  tes- 
tatrix and  the  scrivener  understood  the  will  differently  from 
its  legal  import.  But  parol  evidence  is  competent  for  neither 
of  these  purposes. 

The  law  requires  wills,  both  of  real  and  personal  estate, 
to  be  in  writing,  and  parol  evidence  is  not  admissible  to 
add  to,  contradict  or  vary  their  contents.  "  No  princi- 
ple," says  Mr.  Jarman,  "  connected  with  the  law  of  wills  is 
more  firmly  established  or  more  familiar  in  its  application 
than  this ;  and  it  seems  to  have  been  acted  upon  by  the 
judges,  as  well  of  early  as  of  later  times,  with  a  cordiality  and 
steadiness  which  show  how  entirely  it  coincided  with  their 
own  views."  1  Jarman  on  Wills  349. 

Tiie  judgment  of  a  court  in  expounding  a  will  is  to  be 
simply  declaratory  of  what  is  in  the  instrument.  Wigram 
on  Wills ;  Greenl.  on  Ev.,  §  290,  note ;  1  Jarman  on  Wills 
358. 

Tbere  are  no  latent  ambiguities  to  be  removed.  The  words 
of  the  will  are  clear,  and  have  a  definite  and  well-ascertained 
meaning.  In  such  case  no  extrinsic  evidence  to  show  a  dif- 
ferent meaning  can  be  admitted. 

See  the  cases  cited  in  1  Jarman  348,  note  1 ;  Mann  v. 
Ex'rs  oj  Mann,  1  Johns.  Ch.  R.  231. 


MAY  TERM,  1860.  105 


Fairchild  v.  Crane. 


'  These  principles  have  been  repeatedly  recognized  in  this 
state.  Hand  v,  Hoffman,  3  Halst.  71. 

There  is  nothing  in  the  case  that  will  warrant  a  decree  in 
favor  of  the  complainants. 

The  bill  must  be  dismissed. 


STEPHEN  FAIRCHILD,  Executor  of  Scott,  vs.  AARON 
CRANE  and  others. 

1.  Words  in  a  will  which,  if  applied  to  real  estate,  would  create  au 
^tate  tail,  will  vest  personal  estate  absolutely  in  the  legatee, 

2.  Consequently,  a  bequest  of  personal  property,  to  take  effect  on  the 
death  of  the  first  legatee  without  issue,  or  on  the  failure  of  heirs  of  his  body, 
without  other  restriction,  is  too  remote, 

3.  But  it  is  equally  well  settled  that  a  legacy  of  a  chattel  interest  gener- 
ally, or  for  life,  or  for  any  number  of  lives  in  being,  and  limitation  over 
upon  the  failure  of  issue  confined  to  twenty-one  years  after  a  life  in  being, 
is  good. 

4.  A  testator  bequeathed  the  interest  of  the  fund  to  his  wife  during  her 
life,  and  upon  her  death   he  gave  the  fund  to  his  two  sisters,  Eliza  and 
Susan,  in  equal  shares,  "during  their  lifetime,"  and  upon  the  death  of 
either  of  them,  to  the  survivor,  (<for  her  lifetime,*"  but  if  both  or  either 
of  them  should  die  leaving  a  child  or  children,  the  share  of  each,  "so  be- 
queathed for  her  lifetime  only,"  to  go  to  her  child  or  children.     If  one 
should  die  leaving  a  child  or  children,  and  the  other  should  die  leaving 
no  child,  the  shares  of  both  to  go  to  such  child  or  children.     If  both 
should  die  leaving  no  heir  or  heirs,  the  shares  of  both  to  go  to  the  child- 
ren of  testator's  sister  Augusta;  but  should  she  have  no  children  living 
at  the  time  the   above-bequeathed  property  should  have  lawfully  gone 
from  the  possession  of  the  testator's  wife,  and  also  from  the  possession  of 
either  or  both  of  her  sisters  Eliea  and  Susan,   then   the  property  be- 
queathed to  become  the  property  of  all  the  other  legal  representatives  of 
the  testator. 

5.  Held,  that  the  bequest  over  upon  the  death  of  the  testator's  sisters- 
was  not  upon  their  death  without  issue,  or  upon  the  failure  of  issue,  but  upon 
their  dying  "  leaving  no  children,"  and  that  those  terms  import  leaving 
no  children  at  the  death  of  the  legatee. 

6.  Also,  the  bequest  being  upon  the  death  of  either  of  the  sisters  with- 
out issue,  "to  the  survivors,"  it  imports  that  the  testator  intended  the  be- 
quest to  take  effect  upon  a  definite  failure  of  issue,  and  consequently  the 
sisters  take  only  the  use  of  the  fund  for  life. 


106  CASES  IN  CHANCERY. 

Fairchild  v.  Crane. 
T.  Little,  for  complainant. 

THE  CHANCELLOR.  The  only  question  submitted  for 
consideration  is  whether,  under  the  terms  of  the  will,  the 
sisters  of  the  testator,  Eliza  and  Susan,  took  an  absolute  in- 
terest in  the  legacies  bequeathed  to  them. 

The  testator  bequeathed  to  his  wife  the  interest  of  the 
fund  in  question  during  her  life,  and  upon  her  death  he 
gives  the  fund  to  his  two  sisters,  Eliza  and  Susan,  in  equal 
shares,  "  during  their  lifetime,"  and,  upon  the  death  of 
either  of  them,  to  the  survivor,  "  for  her  lifetime."  But 
if  both  or  either  of  them  die  leaving  a  child  or  children, 
the  share  of  each  so  bequeathed  "  for  her  lifetime  only  "  to 
go  to  her  child  or  children.  If  one  die  leaving  a  child  or 
children,  and  the  other  die  leaving  no  child,  the  shares  of 
both  to  go  to  such  child  or  children.  If  both  die  "  leav- 
ing no  heir  or  heirs,"  the  shares  of  both  go  to  the  children 
of  the  testator's  sister,  Augusta  Decamp ;  but  should  she 
have  no  children  living  at  the  time  the  above-bequeathed 
property  shall  have  lawfully  gone  from  the  possession  of 
the  testator's  wife,  and  also  from  the  possession  of  either  or 
both  of  his  sisters,  Eliza  and  Susan,  then  the  property  be- 
queathed is  to  become  the  property  of  all  the  other  legal  rep- 
resentatives of  the  testator. 

By  a  subsequent  clause  of  the  will,  the  executor  is  directed 
to  invest  the  fund  on  mortgage  security,  and  to  pay  the  in- 
terest to  his  wife  during  her  life,  and  after  her  death  to  his 
sisters,  Eliza  and  Susan,  or  interest  and  principal  to  their 
child  or  children,  or  to  the  child  or  children  of  his  sister 
Augusta,  or  other  legal  representatives,  in  conformity  with 
the  devises  before  made. 

Nothing  can  be  more  clear,  from  the  whole  structure  of 
the  will,  than  that  the  testator  designed  that  his  sisters 
should  take  the  interest  only,  and  in  no  contingency  the 
principal  of  the  fund  ;  that  upon  their  or  either  of  their 
death,  leaving  children,  it  should  go  to  such  children,  and 
.in  default  of  such  children,  to  the  children  of  his  sister 


MAY  TERM,  1860.  107 

Fairchild  v.  Crane. 

Augusta,  and  in  default  of  her  children,  to  all  the  other  legal 
representatives  of  the  testator. 

Jt  should  be  a  clear  and  well-settled  rule  of  construc- 
tion, and  obvious  in  its  application,  that  would  operate  to 
defeat  a  purpose  so  clearly  expressed,  and  to  give  the  fund 
absolutely  to  the  sisters,  in  exclusion  of  the  subsequent 
legatees. 

Words  in  a  will  which,  if  applied  to  real  estate,  would 
create  an  estate  tail,  will  vest  personal  estate  absolutely  in 
the  legatee.  Fearne  on  Rem.  341,  373;  2  Jarman  on  Wills 
488  ;  2  Story's  Eq.,  §  990 ;  Lyon  v.  Mitchel,  1  Mad.  (Am. 
ed.}  253  ;  and,  consequently,  a  bequest  of  personal  property, 
to  tak.e  effect  on  the  death  of  the  first  legatee  without  issue, 
or  on  the  failure  of  heirs  of  his  body,  without  other  restric- 
tion, is  too  remote.  Fearne  on  Rem.  341. 

But  it  is  equally  well  settled  that  a  legacy  of  a  chattel 
interest  generally  or  for  life,  or  for  any  number  of  lives  in 
being,  and  then  a  limitation  over  upon  the  failure  of  issue, 
confined  to  twenty-one  years  after  a  life  in  being,  is  good. 
Fearne  on  Rem.  320,  376-8 ;  4  Kent's  Com.  267. 

The  real  question  is,  whether  the  limitation  over,  upon  the 
death  of  the  testator's  sisters,  is  upon  a  definite  or  an  indefi- 
nite failure  of  issue.  If  the  forrner,  the  sisters  take  only  the 
use  of  the  fund  for  life,  and  the  subsequent  bequest  is  good  ; 
if  the  latter,  the  language  would  create  an  estate  tail  in  real 
estate,  but  of  the  personalty  it  creates  an  absolute  gift,  and 
the  limitation  over  is  void. 

The  bequest  over,  upon  the  death  of  the  testator's  sisters, 
is  not  upon  their  death  without  issue,  or  upon  the  failure  of 
issue,  but  upon  their  dying,  "  leaving  no  children."  These 
terms  import  not  a  failure  of  issue  at  any  indefinite  future 
period,  but  a  dying  without  children  leaving  no  children  at 
the  death  of  the  legatee. 

The  term  "  children,"  as  here  used,  imports  not  succes- 
sion or  limitation,  but  denotes  the  legatees  who  are  to 
take  on  the  death  of  the  testator's  sisters,  viz.,  their  child- 
ren who  may  then  be  living.  The  term,  in  its  natural 


108  CASES  IN  CHANCERY. 

Fairchild  y.  Crane. 

import,  is  a  word  of  purchase,  and  not  of  limitation.  Buffar 
v.  Bradford,  1  Atlcyns  220. 

The  bequest,  moreover,  upon  the  death  of  either  of  the 
sisters  without  issue,  is  to  the  "survivor"  which  imports  that 
the  testator  intended  the  bequest  to  take  effect  upon  a  definite 
failure  of  issue.  Den  v.  ScheneJc,  3  Haht.  29 ;  Den  v.  Combs, 
3  Harr.  27 ;  Den  v.  Allaire,  Spencer  6. 

In  one  clause  of  the  will — that  in  which  the  property  is 
limited  over  to  Augusta  Decamp — this  language  is  employed, 
viz.,  "  in  case  my  two  sisters  die  leaving  no  heir  or  heirs" 
and  the  limitation  over  is  upon  that  contingency.  But  it  is 
obvious,  from  the  previous  and  subsequent  provisions  of  the 
will,  that  the  testator  here  used  the  terms  heir  or  heirs,  as 
synonymous  with  child  or  children.  The  will  must  be  con- 
strued accordingly.  Loveday  v.  Hopldm,  Ambler  273  •  Shep- 
herd v.  Nabors,  6  Ala.  631. 

The  case  does  not  fall  within  the  principle  of  Kay  v.  The 
Executors  of  Nay,  3  Green's  Ch.  Rep.  495. 

If  there  were  room  for  doubt  upon  the  previous  clauses 
of  the  will,  the  final  disposition  of  the  fund  removes  all 
uncertainty  as  to  the  nature  of  the  contingency  upon 
which  the  limitation  over  is  made  to  depend.  The  direc- 
tion of  the  testator  is,  that  the  property  shall  go  to  all  his 
other  legal  representatives,  in  case  his  sister  Augusfa 
should  have  no  children  living  at  the  time  that  the  prop- 
erty shall  have  gone  from  the  possession  of  his  wife  and 
from  the  possession  of  his  sisters.  The  gift  to  the  children 
of  his  sister  living  at  the  time  that  the  property  shall  have 
passed  from  all  the  prior  legatees,  shows  that  all  the 
previous  bequests  must  have  been  limited  upon  a  definite 
failure  of  issue. 

The  terms  of  the  will,  if  applied  to  real  estate,  would 
not  create  an  estate  tail  in  the  sisters  of  the  testator,  and  do 
not  vest  in  them  an  absolute  right  to  the  personalty.  They 
take  only  the  interest  of  the  fund  for  their  respective  lives, 
and  upon  their  deaths  it  goes  over,  in  accordance  with  the 
directions  of  the  will. 


MAY  TERM,  1860.  109 

Scudder  v.  Vanarsdale. 

This  conclusion  will  be  found  to  be  sustained  by  the 
following,  among  many  other  cases.  Hughes  v.  Sayer,  1 
P.  Wms.  534;  Atkinson  v.  Hutchinson,  3  P.  Wms.  258; 
Stone  v.  Laule,  2  Simons  490 


JANE  SCUDDER'S  executors  vs.  ISA.AC  VANARSDALE  and 

others. 

1.  Testatrix  was  possessed  of  personal  and  real  estate,  and  by  her  will 
directed  the  latter  should  be  sold  by  her  executors,  and  after  giving  nu- 
merous pecuniary  legacies,  principally  among  her  relatives  and  the  rela- 
tives of  her  deceased  husband,  she  added,  "and  if  there  is  anything  over 
and  above  left,  let  it  be  equally  divided  among  all  the  heirs." 

2.  Held,  that  the  word  heirs,  in  the  above  connection,  means  "next  of 
kin." 

3.  Whe^  money  or  personal  property  is  bequeathed  to  the  heirs  of  A, 
or  to  the  heirs  of  the  testator,  if  there  be  nothing  in  the  will  showing  that 
the  testator  used  the  word  in  a  different  sense,  the  next  of  kin  are  entitled 
to  claim  under  the  description  as  the  persons  appointed  by  law  to  succeed 
to  personal  property. 

4.  It  is  also  a  well-settled  rule  in  equity  that  where  lands  are  directed 
to  be  converted  into  money,  and  the  proceeds  given  as  a  legacy,  it  will  be 
treated  as  a  legacy  of  personal  estate. 

5.  Where  the  property  under  a  bequest  passes  to  the  persons  entitled 
under  the  statute  of  distributions  to  receive  it,  in  the  absence  of  any  ex- 
press directions  in  the  will  it  will  go  in  the  proportions  prescribed  by  the 
statute.    In  such  case,  where  they  are  not  all  in  equal  degree,  the  children 
of  a  deceased  parent  will  take  by  right  of  representation  per  stirpes,  and 
not  per  capita. 

6.  But  in  this  case  the  direction  being  that  the  fund  shall  be  divided 
equally  among  all  the  heirs,  the  direction  must  prevail,  and  the  legatees 
lake  per  capita. 

This  case  was  disposed  of  on  final  hearing. 

James  Wilson,  for  complainants. 

T.  H.  Dudley  and  John  F.  Hageman,  for  defendants. 

THE  CHANCELLOR.     This  bill  is  filed  in  order  that  the 
accounts  of  the  executors  may  be  duly  settled,  and  to  that 
VOL.  ii.  a 


110  CASES  IN  CHANCERY. 

Scudder  v.  Vanarsdale. 

end  that  the  will  may  be  construed,  and  its  true  meaning 
established  under  the  authority  of  the  court. 

The  question  submitted  for  the  consideration  of  the 
court  is  the  true  construction  of  the  residuary  clause  of 
the  will  of  Jane  Scudder. 

The  testatrix  died  in  1855,  seized  and  possessed  of  per- 
sonal and  real  estate.  By  her  will  she  directs  that  her 
real  estate  should  be  sold  by  her  executors  as  soon <  as 
they  conveniently  can,  and  the  accounts  settled.  She 
distributes  (principally  among  her  relatives  and  the  rela- 
tives of  her  deceased  husband)  numerous  pecuniary  lega- 
cies, amounting  to  $16,950.  She  also  bequeaths  a  few 
specific  legacies.  After  giving  these  legacies,  the  testa- 
trix adds,  "  and  if  there  is  anything  over  and  above,  let  it  be 
equally  divided  among  all  the  heirs" 

A  great  variety  of  constructions  is  sought  by  parties  in 
interest  to  be  put  upon  this  clause.  It  is  claimed  that 
the  testatrix  intended  that  the  residue  should  be  divided, 
as  the  clause  literally  imports,  among  her  heirs-at-law, 
among  her  next  of  kin,  among  her  own  and  her  husband's 
next  of  kin,  among  all  the  legatees  named  in  the  will. 
Among  these  and  other  conjectures  that  may  plausibly 
be  made  as  to  the  meaning  of  the  testatrix,  the  further 
conjecture  may  be  hazarded,  that  neither  the  testatrix 
herself  nor  the  inexpert  scrivener  who  drew  the  will  had 
any  very  clear  apprehension  of  her  own  meaning. 

Fortunately  for  the  cause  of  justice  and  the  rights  of 
the  legatees,  the  construction  of  the  will  is  not  to  be  left 
to  conjecture,  but  must  be  settled  by  well-defined  princi- 
ples and  according  to  acknowledged  rules  of  interpreta- 
tion. 

Where  money  or  personal  property  is  bequeathed  to 
the  heirs  of  A,  or  to  the  heirs  of  the  testatrix,  if  there  be 
nothing  in  the  will  showing  that  the  testator  used  the 
word  in  a  different  sense,  the  next  of  kin  are  entitled  to 
claim  under  the  description  as  the  persons  appointed  by 
law  to  succeed  to  the  personal  property.  Holloway  v. 


MAY  TERM,  1860.  Ill 

Scudder  v.  Vanarsdale. 

Holloway,  5  Vesey  399  ;  Vaux  v.  Henderson,  1  Jac.  &  Walk. 
388,  note;  Evans  v.  Salt,  6  Beav.  266;  Pn'ce  v.  Lockley, 
6  .Seac.  180;  2  Hrms.  on  Executors  996;  Lowndis  v.  tffone, 
4  Fesey  649;  JFr^Af  v.  Trustees  of  Meth.  E.  Church,  1  Ho/- 
man's Ch.  R.  212;  Ferguson  v.  Stewart's  executors,  14  0/tio 
141  ;  Corbitv.  Corbit,  1  Jones'  Eg.  Rep.  114;  Henderson  v; 
Henderson,  1  Jones'  (same)  221 ;  Evans  v.  Gadbold,  Q  Rich. 
Eq.  R.  26. 

In  Gittings  v.  McDermott,  2  Mylne  &  Keen  69,  it  was  urged 
that  the  word  "  heirs  "  is  of  ambiguous  import  when  applied 
to  a  legacy.  But  the  master  of  the  rolls  said  in  reply,  there 
is  really  nothing  in  this  objection  ;  "for  the  sense  in  which 
this  word  shall  be  taken  when  applied  to  personalty  is  fixed 
by  many  decisions." 

In  Mounsey  v.  JBlamire,  4  Russell  384,  the  master  of  the 
rolls  held  that  when  a  legacy  is  given  by  a  testator  to  his 
heir,  unless  controlled  by  the  context  of  the  will,  the  heir- 
at-law  will  take  the  legacy,  and  not  the  next  of  kin.  He 
distinguished  between  the  meaning  of  the  word  as  used 
to  denote  succession  and  where  it  is  used  not  to  denote 
succession  but  to  describe  a  legatee.  He  said  where  the 
word  "heir"  is  used  to  denote  succession,  there  it  may 
well  be  understood  to  mean  such  person  or  persons  as 
would  legally  succeed  to  the  property  according  to  its 
nature  and  quality,  as  in  Vaux  v.  Henderson,  and  in  the 
familiar  case  of  -a  gift  to  a  man  and  his  heirs.  But  when 
the  word  is  used  not  to  denote  succession,  but  to  describe 
a  legatee,  and  there  is  no  context  to  explain  it  otherwise, 
then  it  seems  to  me  to  be  a  substitution  of  conjecture  in 
the  place  of  clear  expression,  if  I  am  to  depart  from  the 
natural  and  ordinary  sense  of  the  word  "  heir."  In  Vaux 
t'.  Henderson  the  bequest  was  to  Edward  Vaux,  "and 
failing  him  by  decease  before  me,  to  his  heirs."  In  such 
case  the  phrase  "to  his  heirs"  is  used  to  describe  the 
legatee,  and  no  more  denotes  succession  than  if  the  legacy 
had  been  to  the  heirs  of  B.  or  to  the  heirs  of  the  testator 
himself.  It  will  be  difficult  to  distinguish  in  construction 


112  CASES  IN  CHANCERY. 

Scudder  v.  Vanarsdale. 

between  a  legacy  "  to  A,  and  on  his  death  to  his  heirs," 
and  a  legacy  to  "  the  heirs  of  A,"  or  between  a  legacy 
"  to  the  heirs  of  A"  and  a  legacy  "  to  my  heirs,"  or 
to  assign  a  satisfactory  reason  why  in  one  case  the  leg- 
acy should  go  to  the  next  of  kin,  and  in  the  other  to  the  heirs- 
at-law. 

The  more  rational  rule  of  interpretation,  and  the  one 
more  likely  to  attain  the  end  of  all  construction,  viz., 
to  effect  the  intent  of  the  testator,  is,  that  the  term 
"  heir "  is  to  be  construed  in  reference  to  the  species  of 
property  which  is  the  subject  of  disposition,  and  "that 
when  used  with  reference  to  personal  property  >t  means 
next  of  kin. 

It  may  be  added  in  this  ease,  aside  from  the  general 
rule  of  interpretation,  that  the  heirs-at-law  of  the  testa- 
trix were  two  brothers,  who,  among  many  other  relations, 
were  named  in  the  will  ,  and  if  her  intention  had  been  to 
give  the  residue  to  them,  she  would  naturally  have  done  it 
in  express  terms,  and  not  have  directed  it  to  be  divided 
among  all  the  heir»-at-law. 

It  appears  by  the  bill  that  the  inventory  of  the  personal 
estate  of  the  testatrix  amounted  to -$13,846.48,  and  that  the 
sales  of  the  real  estate  amounted  to  $11,00(>,  making  the 
total  estate  $24,852.48.  The  pecuniary  legacies  amount  to 
$1&,950,  besides  certain  specific  legacies.  These  legacies, 
aside  from  the  debts  and  commissions,  more  than  exhaust  all 
the  personalty,  so  that  the  residue  consists  in  fact  of  the  pro- 
ceeds of  the  sale  of  the  real  estate  ;  and  hence  it  is  argued  that 
the  term  heirs  should  receive  its  strict  technical  interpretation 
and  should  be  construed  to  mean  the  heir-at-law,  and  not  the 
next  of  kin. 

The  whole  estate  is  treated  and  disposed  of  as  personalty. 
The  executors  are  ordered  to  sell  the  real  estate,  and  convert 
it  into  money.  The  testatrix  manifestly  regarded  it  as  such, 
and  treated  the  whole  estate  as  one  entire  fund. 

It  is  a  well-settled  rule  in  equity,  that  when  lands  are 
directed  to  be  converted  into  money,  and  the  proceeds 


MAY  TERM,  1860.  113 

Scudder  v.  Vanarsdale. 

given  as  a  legacy,  it  will  be  treated  as  a  legacy  of  personal 
estate.  Yates  v.  Compton,  2  P.  Wms.  308;  Fletcher  v.  Ash- 
burner,  1  Bro.  Ch.  Cos.  497;  Craig  v.  Leslie,  3  Wheat.  563; 
Ferguson  et  ux.  v.  StuarCs  Ex'rs,  14  0/iio  .R.  14. 

It  is  more  material,  however,  for  the  purpose  of  effectu- 
ating the  intention  of  the  testatrix,  to  observe  that-she  did 
not  distinguish  between  the  real  and  personal  estate,  but 
treated  it  all  as  one  fund,  and  bequeathed  it  as  personalty. 

When  the  property  under  a  bequest  passes  to  the  persons 
entitled,  under  the  statute  of  distributions,  to  receive  it,  in 
the  absence  of  any  express  direction  in  the  will,  it  will  go  in 
the  proportions  prescribed  by  the  statute.  In  such  case, 
where  they  are  not  all  in  equal  degree,  the  children  of  those 
deceased  will  take,  by  right  of  representation,  per  stirpes  and 
not  per  capita.  Roach  v.  Hammond,  Prec.  in  Chan.  401. 

But  the  will,  in  this  case,  expressly  directs  that  the  fund 
shall  be  divided  equally  among  all  the  heirs.  In  such  case, 
the  direction  must  prevail,  and  the  legatees  take  per  capita. 
Thomas  v.  Hole,  Cos.  Temp.  Talbot  251 ;  Butler  v.  Stratton, 
3  Bro.  C.  C.  367;  Bladder  v.  Webb,  2  P.  Wms.  383. 

Among  other  constructions  sought  to  be  given  to  the  re- 
siduary clause,  it  is  claimed  that  the  testatrix,  by  the  term 
"heirs,"  meant  "legatees,"  and  that  the  design  was  to  distrib- 
ute the  residue  as  well  among  her  husband's  relatives  as  her 
own.  This  construction  may  be  adopted  where  such  intention 
is  manifest.  Collier  v.  Collier's  Ex'rs,  3  Ohio  State  R.  369. 

But  no  such  intention  is  manifest  on  the  face  of  this  will, 
nor  is  there  anything  from  which  such  intention  can  be  legiti- 
mately inferred.  A  conclusive  objection,  moreover,  to  this 
construction  is,  that  there  are  included  among  the  legatees 
servants  and  others,  who  are  of  no  kin,  either  to  the  testatrix 
or  her  husband. 

The  offer  to  prove,  by  parol,  what  was  the  intention  of  the 
testatrix,  is  clearly  inadmissible. 

Decree  accordingly. 


114  CASES  IN  CHANCERY. 


Bennet  v.  Bennet 


BENNET  vs.  BENNET. 

1.  At  common  law,  the  father,  in  the  first  instance,  is  entitled  to  the 
custody  of  his  children,  but  courts  will  exercise  a  sound  discretion  for  the 
benefit  of  the  children,  in  disposing  of  their  custody. 

2.  The  act  of  the  20th  of  March,  1860,  has  materially  altered  the  rule 
of  the  common  law,  and  has,  to  a  certain  extent,  deprived  the  court  of  this 
exercise  of  its  discretion  in  disposing  of  the  custody  of  children.     By 
this  act,  the  custody  of  the  children  within  the  age  of  seven  years,  is 
transferred  from  the  father  to  the  mother. 

3.  This  act  is  not  unconstitutional,  nor  is  it  void  as  being  incompatible 
with  the  fundamental  principles  of  government. 


The  petition  for  the  writ  of  habeas  corpus,  in  this  case, 
was  filed  on  the  28th  of  March,  1860.  The  petitioner  repre- 
sents that  she  is  a  married  woman,  the  mother  of  two  infant 
children  of  tender  years,  viz.,  a  daughter,  who  completed  her 
fourth  year  in  July,  1859,  and  a  son,  who  completed  his  third 
year  in  January,  1860.  That  the  father,  in  January  last,  left 
his  residence,  taking  with  him  the  child  of  a  former  marriage 
and  the  two  children  of  the  petitioner,  and  has  since  resided 
separate  from  the  petitioner,  detaining  her  children  from  her 
care  and  custody,  doing  violence  to  the  feelings  and  affections 
of  the  mother  and  to  the  injury  of  the  present  welfare  and 
future  good  of  the  children.  The  writ  issued  returnable  on 
the  third  of  April  last. 

The  time  for  the  return  of  the  writ  having  been  extended 
beyond  the  return  day,  by  consent  of  parties,  and  the  pro- 
duction of  the  bodies  of  said  infants  having  been  dispensed 
with,  by  like  consent,  until  otherwise  ordered  by  the  court,  on 
the  25th  of  April,  an  order  was  made,  on  the  application  of 
the  petitioner,  that  return  be  made  to  the  writ,  except  so  much 
of  the  same  as  requires  the  production  of  the  bodies  of  said 
infants,  on  the  first  day  of  May,  upon  four  days'  service 
of  a  copy  of  the  order. 

The  writ,  with   the  answer   of  the   defendant,   was  re- 


MAY  TERM,  1860.  115 


Bennet  v.  Bennet. 


turned  and  filed  on  the  5th  of  May.  On  the  15th  of  May, 
on  the  application  of  the  petitioner,  and  with  the  assent  of 
the  defendant's  counsel,  leave  was  given  to  the  petitioner  to 
file  an  answer  traversing  the  return, -it  being  understood  that 
the  defendant  would  be  at  liberty  to  file  a  replication  to  the 
petitioner's  answer.  It  was  at  the  same  time  further  ordered 
that,  upon  the  answer  being  filed,  both  parties  should  have 
leave  to  take  testimony  to  be  used  on  the  hearing  of  the 
cause,  and  that  the  same  be  brought  to  hearing  on  the  13th 
of  June,  without  further  notice.  The  answer  was  filed  on 
the  day  of  the  date  of  the  order.  Testimony  was  taken  on 
the  part  of  the  petitioner,  between  the  8th  and  16th  of 
June.  No  replication  was  filed  by  the  defendant  to  the  an- 
swer of  the  petitioner  made  to  the  defendant's  return,  nor 
was  any  evidence  taken  on  the  part  of  the  defendant. 

The  hearing  was  postponed  from  time  to  time,  by  con- 
sent of  counsel,  until  the  third  of  July,  when  the  cause  was 
brought  to  hearing.  Before  the  opening  of  the  case,  the  de- 
fendant's counsel  applied  for  further  time  for  taking  testi- 
mony, which  having  been  denied,  the  cause  was  argued  July 
3d,  I860. 

Dodd  and  Frelinghuysen,  for  the  petitioner. 
Bradley,  for  the  defendant. 

THE  CHANCELLOR.  The  petitioner,  the  mother  of  two 
infant  children  of  tender  years,  asks  the  restoration  of  the 
children  to  her  care  and  custody,  from  which  they  were 
taken  by  her  husband,  the  father  of  the  children.  The 
husband  and  wife  are  living  in  a  state  of  separation  with- 
out being  divorced.  The  children  are  both  under  the  age 
of  five  years,  and  are  BOW  living  with  the  father,  and  under 
his  control. 

There  is  no  question  but  that,  at  the  common  law,  the 
father,  in  the  first  instance,  is  entitled  to  the  custody  of 
his  children.  Courts  will,  however,  exercise  a  sound  dis- 


116  CASES  IN  CHANCERY. 

Bennet  v.  Bennet. 

cretion  for  the  benefit  of  the  children  in  disposing  of  their 
custody.  If  the  infants  are  within  the  age  of  nurture,  or 
the  father  is  manifestly  unfit  to  have  charge  of  them,  they 
will  be  committed  to  the  care  of  the  mother  ;  and  when 
both  parents  are  grossly  ignorant,  immoral  and  unfit  to  be 
entrusted  with  the  care  and  education  of  the  children,  the 
court  may  order  them  to  be  placed  in  the  custody  of  a  third 
person.  In  all  these  cases  they  act  for  the  good  of  the 
children,  to  which  the  rights  of  the  parents  and  their  con- 
trol over  them  are  subordinate. 

The  act  of  the  20th  of  March,  1860,  (Pamph.  L.  437,)  has 
materially  altered  the  rule  of  the  common  law,  and  has, 
to  a  certain  extent,  deprived  the  court  of  the  exercise  of 
its  discretion  in  disposing  of  the  custody  of  the  children. 
It  provides  that  when  the  husband  and  wife  shall  live  in 
a  state  of  separation  without  being  divorced,  and  shall 
have  any  minor  child  or  children  of  the  marriage,  the 
court  or  judge  before  whom  the  children  may  be  brought 
upon  habeas  corpus,  if  the  children  are  under  the  age  of 
seven  years,  shall  make  an  order  that  they  be  delivered  to 
and  remain  in  the  custody  of  the  mother  until  they  attain 
such  age,  unless  said  mother  shall  be  of  such  character 

O      / 

and  habits  as  to  render  her  an  improper  guardian  for  such 
children. 

The  case  now  under  consideration  falls  directly  within 
the  provision  of  the  statute.  The  husband  and  wife  are 
living  in  a  state  of  separation  without  being  divorced. 
The  children  are  under  seven  years  of  age.  Under  such 
circumstances  the  statute  is  imperative  that  the  children 
shall  be  delivered  to  and  remain  in  the  custody  of  the 
mother.  The  court  has  no  discretion  to  exercise.  The 
right  to  the  custody  of  the  children  is  transferred  by  force 
of  the  statute  from  the  father  to  the  mother.  That  right 
the  court  are  to  enforce,  unless  the  mother  shall  be  of 
such  character  and  habits  as  to  render  her  an  improper 
guardian  for  her  children.  That  contingency  must  be 
proved  to  exist — it  will  not  be  presumed.  As  the  law 


MAY  TERM,  1860.  117 


Bennet  v.  Bennet. 


stood  before  the  passage  of  the  act,  the  father  was  en- 
titled to  the  custody  of  the  children,  unless  he  was  of  such 
character  and  habits  as  rendered  him  an  improper  guar- 
dian for  his  children.  By  force  of  the  act,  the  mother, 
under  th'e  limitations  specified  in  the  statute,  is  entitled 
to  the  custody  of  the  children,  unless  she  shall  be  of  such 
character  and  habits  as  to  render  her  an  improper  guardian 
for  her  children.  In  either  case  the  disqualification  must 
be  established  by  proof.  The  mere  fact  that  the  husband 
and  wife  are  living  in  a  state  of  separation  raises  no  pre- 
sumption against  her.  It  is  to  that  very  condition — a 
separation  between  husband  and  wife — that  the  operation 
of  the  statute  is,  in  terms,  limited.  Nor  will  the  disquali- 
fication be  established  by  evidence  of  the  fact  that  the 
separation  was  partially  or  even  wholly  the  fault  of  the 
mother.  The  circumstances  attending  a  separation  be- 
tween husband  and  wife  may  tend  strongly  to  establish  a 
character  which  would  disqualify  the  wife  from  having 
the  guardianship  of  her  children.  On  the  other  hand,  it  is 
easy  to  conceive  of  a  separation  produced  by  a  wife,  who 
might,  nevertheless,  be  a  fond  and  devoted  mother,  and  a 
proper  guardian  for  her  children. 

The  court  happily  is  not  called  upon  to  enter  upon 
the  details  of  the  unhappy  controversy  between  these 
parties,  nor  to  decide  where  the  fault  of  the  separation 
lies.  There  is  nothing  in  the  evidence,  or  even  in  the 
answer  of  the  defendant  himself,  seriously  to  impeach  the 
character  or  habits  of  the  petitioner  as  a  proper  guardian 
for  her  children.  The  burthen  of  proof  is  on  the  defendant, 
and  he  has  utterly  failed,  nay,  he  has  not  attempted  to 
establish  the  fact  upon  which  his  denial  of  the  petitioner's 
right  depends.  He  claims,  by  his  answer,  that  he  is  en- 
titled to  the  custody  of  his  children,  and  that  he  has 
never  forfeited  his  right  to  the  same,  whereas  the  statute 
declares  that  the  mother  is  entitled  to  their  custody,  and 
the  only  question  is,  whether  she  has  forfeited  her  right. 
The  answer  is  consequently  a  defence  of  his  own  supposed 


118  CASES  IN  CHANCERY. 

Bennet  v.  Bennet. 

right,  rather  than  an  impeachment  of  that  of  his  wife.  The 
fact  is  doubtless  accounted  for  by  the  circumstance  suggested 
on  the  argument  that,  at  the  time  of  the  preparation  of  the 
answer,  the  existence  of  the  statute  was  unknown  to  the  de- 
fendant or  his  counsel. 

If  the  statute  is  valid,  it  is  clear  that  the  court  is  bound 
to  order  the  children  to  be  delivered  to  the  custody  of  the 
mother. 

It  is  argued  that  the  statute  is  unconstitutional,  being 
in  violation  of  the  vested  rights  of  the  husband.  The 
statute  does  not  impair  the  obligation  of  any  contract,  and 
is  not  unconstitutional  on  that  ground.  Nor  is  it  sug- 
gested that  there  is  any  other  clause  of  the  constitution 
with  which  it  conflicts.  But  it  is  urged  that  it  is  in 
violation  of  the  fundamental  principles  of  government,  an 
infringement  of  the  rights  of  private  property,  for  the  pro- 
tection of  which  government  was  instituted,  and  is  there- 
fore void. 

The  argument  proceeds  on  the  assumption  that  the 
parent  has  the  same  right  of  property  in  the  child  that  he 
has  in  his  horse,  or  that  the  master  has  in  his  slave,  and 
that  the  transfer  of  the  custody  of  the  child  from  the 
father  to  the  mother,  is  an  invasion  of  the  father's  right 
of  property.  The  father  has  no  such  right.  He  has  no 
property,  whatever,  in  his  children.  The  law  imposes  upon 
him,  for  the  good  of  society  and  for  the  welfare  of  the 
child,  certain  specified  duties.  By  the  jaws  of  nature  and 
of  society,  he  owes  the  child  protection,  maintenance,  and 
education.  In  return  for  the  discharge  of  those  duties, 
and  to  aid  in  their  performance,  the  law  confers  on  the 
father  a  qualified  right  to  the  services  of  the  child.  But 
of  what  value,  as  a  matter  of  property,  are  the  services  of 
a  child  under  seven  years  of  age?  But,  whatever  maybe 
their  value,  the  domestic  relations  and  the  relative  rights 
of  parent  and  child  are  all  under  the  control  and  regula- 
tion of  municipal  laws.  They  may  and  must  declare  how 
far  the  rights  and  control  of  the  parent  shall  extend  over 


MAY  TERM,  1860.  119' 

Rockwell  v.  Morgan. 

the  v*ilkii  taw  they  shall  be  exercised,  and  where  they  shall 
terminate.  They  have  determined  at  what  age  the  right 
of  the  parent  to  the  services  of  the  cliild  shall  cease  and 
what  shall  Ge  an  emancipation  from  his  control. 


CITED  in  &Me  v.  Saird,  3  C.  E.  Or.  199  ;  Landis  v.  Landis,  10  Vr.  278. 


COLUMBUS  C.  ROCKWELL  and  wife  vs.  JAMES  R.  MORGAN 
and  others. 

1.  An  order  for  maintenance  pendente  lite  will  not  be  made,  in  behalf  of 
a  widow  on  her  bill  for  dower. 

2.  Upon  general  principles,  alimony  or  maintenance  is  not  allowed  ex- 
cept as  against  the  husband  himself,  and  that  only  as  incidental  to  a  bill 
for  divorce  or  other  relief  against  the  husband. 


H.  V.  Spew  and  Atlwney-  General,  for  petitioners. 
P.  D.  Vroom,  for  defendants. 

THE  CHANCELLOR.  On  the  30th  of  August,  1858,  the 
complainant  filed  her  bill  in  this  court  to  recover  her  dower 
in  the  lands  whereof  her  husband,  Charles  Morgan,  died 
seized.  The  defendants  are  the  children  of  Charles  Morgan, 
and  the  devisees  under  his  will  of  the  lands  in  question. 
The  widow  has  nothing  under  the  will  of  her  husband.  She 
is  entitled  only  to  her  estate  in  dower.  She  claims  dower  in 
the  whole  of  his  land.  This  claim  is  not  disputed.  As  to  a 
part  of  the  land,  she  claims  that  in  equity  she  is  entitled  to 
the  ownership.  But  if  this  claim  is  not  sustained  she  asks 
dower  in  these  lands  also.  The  bill  of  complaint  was  filed 
on  the  30th  of  August,  1858.  She  now,  by  her  petition,  asks 
that  the  rents  of  a  part  of  the  real  estate  may  be  paid  to  her 
pendente  lite,  or  that  such  other  allowance  or  provision  may 
be  made  pendente  lite  out  of  the  rents  and  profits  of  the  said 
real  estate  as  shall  seem  meet  and  proper. 


'120  CASES  IN  CHANCERY. 

Rockwell  v.  Morgan. 

When  this  application  was  presented  it  seemed  to  me 
to  be  eminently  just.  The  husband  died  seized  of  a  large 
real  estate — he  left  his-  wife  nothing  but  her  dower.  A 
part  of  this  land  was  purchased  with  her  own  property. 
Her  title  to  dower  is  undisputed.  Her  children  are  in  the 
enjoyment  of  the  property.  She  is  without  the  means  of 
livelihood.  Her  husband  has  been  dead  several  years. 
Her  claim  is  still  pending  undecided  in  this  court.  She 
asks  that  a  portion  of  the  rents  of  an  estate  admitted  to 
be  hers  should  be  paid  to  her  for  her  support  pcndente  lite. 
It  seems  difficult  to  conceive  of  a  case  which  presents  a 
stronger  claim  to  the  favorable  consideration  of  a  court 
of  equity. 

And  yet  I  have  been  unable  to  discover  any  principle 
upon  which  the  relief  asked  for  can  be  granted,  nor-have 
I  found  any  case  which  supports  the  application.  It  is 
simply  a  request  for  maintenance  out  of  the  property  in 
question  during  the  progress  of  the  controversy.  The 
claim  clearly  does  not  fall  within  the  equitable  principle 
which  allows  to  a  wife  a  maintenance  during  the  progress 
of  a  suit  against  her  husband.  The  personal  property  of 
the  wife  is  in  the  husband's  hands  and  under  his  control 
during  coverture.  The  wife  is  presumed  to  be  entitled 
to  support  until  it  is  shown  that  her  claim  is  forfeited. 
In  a  controversy  with  her  husband  it  is  just  that  she 
should  have  the  means  of  enforcing  her  claim  or  of  testing 
its  validity.  But  the  dowress  is  not  under  coverture. 
The  claim  is  not  against  her  husband,  nor  even  against 
his  estate.  She  is  attempting  to  enforce  a  claim  to  a 
legal  estate  against  lands  devised  to  her  children.  If  the 
claim  were  against  the  purchasers  of  the  land  from  the 
husband,  it  would  scarcely  be  pretended  that  the  tenant 
could  be  compelled  out  of  the  proceeds  of  the  land  to 
contribute  to  the  support  of  the  dowress  pending  the 
controversy.  But  what  stronger  claim  has  she  in  equity 
against  her  husband's  children  than  she  would  have 
against  a  stranger  ?  She  clearly  has  no  claim  in  this  court 


MAY  TERM,  1860.  121 


Craft  v.  Executors  of  Snook. 


to  alimony  or  maintenance  from  the  children.  I  know  of  no 
case  in  which  this  claim  is  allowed  except  as  against  the  hus- 
band himself,  and  that  only  as  incidental  to  a  bill  for  divorce 
or  other  relief  against  the  husband,  except  in  the  case  spec- 
ially provided  by  our  statute.  Nix.  Dig.  206,  §  10. 

Such  seems  to  have  been  the  view  heretofore  taken  of  this 
question  in  this  court.  Miller  v.  Miller,  Saxton  389;  Yule 
v.  Yule,  2  Stockton  138. 

In  the  case  of  Turrell  v.  Turret!,  2  Johns,  C.  R.  391,  where 
the  wife  filed  a  bill  against  her  husband,  charging  that  he 
was  attempting  to  get  possession  of  a  legacy  left  her  by  her 
father,  the  court  permitted  her  to  receive  the  interest  of  the 
note  during  the  controversy.  But  this  allowance  was  made 
under  the  authority  of  a  statute.  The  claim,  moreover,  was 
against  the  husband  himself.  I  lay  no  stress  upon  the  cir- 
cumstance that  io  this  case  the  dowress  is  married,  and  that 
the  suit  is  brought  by  the  husband  and  wife  jointly. 

The  motion  is  deuied,  with  costs, 

CITED  in  Pierton  v.  Hitchmer,  10  C.  E.  Or.  134. 


ENOCH  CRAFT  and  others  vs.  THE  EXECUTORS  OF  ENOCH 

SNOOK. 

When  the  "  interest "  or  "  produce  "  of  a  fund  is  bequeathed  to  a  lega- 
tee, or  in  trust  for  him,  without  any  limitation  as  to  continuance,  the  prin- 
cipal will  be  regarded  as  bequeathed  also. 


Isaac  W.  Lanning,  for  complainants. 

THE  CHANCELLOR.  The  bill  in  this  case  is  filed  to  obtain 
a  judicial  construction  of  the  will  of  Enoch  Snook,  late  of  the 
county  of  Mercer,  deceased. 

The    testator,  among  other   legacies   and    provisions   of 


122  CASES  IN  CHANCERY. 

Craft  v.  Executors  of  Snook. 

his  will,  gives  and  bequeaths  as  follows,  viz. :  "  I  give  and 
bequeath  unto  my  sister,  Elizabeth  Craft,  the  interest 
upon  the  sum  of  one  thousand  dollars,  to  be  paid  to  her 
annually  during  her  life;  and  after  her  decease,  the  in- 
terest to  be  equally  divided  between  Enoch  Craft  and 
Mahlon  Craft."  "  In  case  there  shall  be  anything  re- 
maining over  and  above  paying  the  legacies  above  men- 
tioned and  bequeathed,  then  I  order  the  same  to  be  placed 
at  interest,  and  the  interest  thereof  annually  to  be  divided 
between  Enoch  Craft,  Mahlon  Craft,  Samuel  Craft,  Alex- 
ander Snook,  Emley  Snook,  Eden  Snook,  Peter  Johnston 
Snook  and  Peter  Hunt."  The  will  contains  no  disposi- 
tion of  the  principal  of  the  $1000  legacy  or  of  the  residue, 
nor  is  there  any  limitation  of  the  time  during  which  the 
interest  is  to  be  paid.  Elizabeth  Craft,  the  sister- of  the 
testator,  received  the  interest  upon  the  sura  of  $1000,  ac- 
cording to  the  directions  of  the  will,  daring  her  life.  She 
died  leaving  Enoch  Craft  and  Mahlon  Craft  surviving. 
The  legatees,  as  well  of  the  interest  of  the  specific  legacy 
as  of  the  residue,  now  claim  that  they  are  entitled  to  the 
principal  sum  of  which  the  interest  is  thus  bequeathed  to 
them. 

The  general  principle  has  been  long  and  well  settled, 
that  when  the  "interest"  or  "produce"  of  a  fund  is  be- 
queathed to  a  legatee,  or  in  trust  for  him,  without  any 
limitation  as  to  continuance,  the  principal  will  be  regarded 
as  bequeathed  also,  Elton  v.  Sheppard,  1  Brown's  C.  G. 
532 ;  Philipps  v.  Chamberlaine,  4  Vesey  51 ;  Page  v.  Leap- 
ingwell,  18  Vesey  463;  Stretch  v.  Watkins,  1  Madd.  253; 
Clouyh  v.  Wynne,  2  Madd.  188;  Adamson  v.  Armitage,  19 
Vesey  416 ;  Earl  v.  Grim,  1  Johns.  Ch.  R.  494;  2  Williams 
.  on  Ex'rs  (3d  Am.  ed.)  1027. 

There  is  nothing  on  the  face  of  the  will  in  question  to 
i  indicate  a  different  intention.  On  the  contrary,  unless 
i  this  construction  be  adopted,  the  testator  died  intestate  as  to 
i  the  bulk  of  bis  property.  He  bequeathed  not  the  principal, 
.  but  the  interest  money  of  a  large  portion  of  hi»  estate.  Swcfa 
,  obviously  was  not  his  intention. 


MAY  TERM,  1860.  123 


Smallwood  v.  Lewin. 


The  legatees  of  the  interest  of  the  $1000  legacy  and  of  the 
residue,  are  entitled  to  receive  the  principal  of  the  legacies 
respectively. 

The  executors  are  entitled  to  their  costs,  as  they  have 
merely  sought,  for  their  security,  to  have  the  construction  of 
the  will  settled. 

If  the  parties  agree  as  to  the  amount  now  due  upon  the 
respective  legacies,  there  is  no  need  of  a  reference;  otherwise, 
let  it  be  referred  to  a  master  to  take  an  account. 


JOSEPH  L.  SMALLWOOD  and  others  vs.  ROBERT  LEWIN  and 

others. 

1.  After  the  testimony  has  been  closed,  and  the  cause  regularly  set 
down  for  final  hearing,  the  court  will  not  permit  a  supplementary  answer 
to  be  put  in,  unless  the  delay  is  satisfactorily  accounted  for. 

2.  It  should  appear  that  the  matter  of  the  supplementary  answer  is 
new,  or  a  sufficient  reason  given  for  not  having  it  in  the  original  answer. 

3.  The  mortgage  sought  to  be  foreclosed,  was  given  to  secure  part  of  the 
consideration  on  the  purchase  of  the  mortgaged  premises.     The  title  to  a 
part  of  the  premises  failed.     The  complainants  were  not  the  vendors  of 
the  premises  nor  the  original   mortgagees.     They  held  the  mortgage  by 
assignment,  executed  prior  to  the  sale  of  the  premises,  by  the  original 
mortgagor,  to  the  defendant.     Under  the.se  circumstances,  the  fact  that  the 
title  made  by  the  mortgagor  to  the  defendant,  the  present  owner,  was 
defective,  can  in  no  wise  affect  the  rights  of  a  bona  fide  mortgagee,  under 
a  mortgage  executed  prior  to  the  conveyance. 


This  was  a  motion  for  leave  to  file  supplementary  answer. 

B.  WUliamson,  of  counsel  with  complainants,  opposed 
motion. 

THE  CHANCELLOR.  The  complainants  filed  a  foreclosure 
bill  against  Lewin,  the  mortgagor,  and  Thomas  V.  John- 
eon  and  Surah  F.,  his  wife,  the  said  Sarah  being  the 


12 1  CASES  IN  CHANCERY. 

Small  wood  v.  Lewin. 

owner  of  the  premises  in  fee,  subject  to  the  complainants' 
mortgage.  Johnson  and  wife,  having  answered  the  complain- 
ants' bill,  now  ask  leave  to  file  a  supplemental  answer. 

There  are  substantial  objections  to  the  application. 

The  cause  was  put  at  issue  by  filing  the  replication  on  the 
17th  of  December,  1858.  The  rule  to  close  testimony  expired 
on  the  6th  of  February,  1859.  The  complainants'  evidence 
had  been  taken,  and  the  cause  set  down  for  final  hearing  at 
the  present  term.  Upon  the  cause  being  moved,  the  defend- 
ants ask  leave  to  file  their  supplemental  answer. 

The  application  is  too  late,  no  grounds  being  suggested 
as  a  justification  for  the  delay.  Two  months  have  elapsed 
since  the  re-opening  of  the  court,  and  ample  time  was  afforded 
for  making  the  application  before  the  cause  was  set  down  for 
final  hearing.  lu  Macdougal  v.  Purrier,  4  Russ.  486,  au 
application  for  leave  to  file  a  supplemental  answer,  after  the 
cause  had  been  set  down  for  hearing,  was  denied,  with  costs. 

There  is  no  proof  before  the  court,  that  the  matter  is 
new,  nor  any  reason  given  for  not  having  it  in  the  origi- 
nal answer.  This  is  always  required.  2  Daniel? s  Chan. 
Pr.  915. 

A  more  substantial  objection  is,  that  the  defendants  are  not 
in  a  position  to  avail  themselves  of  the  matter  proposed  to 
be  set  up  by  way  of  defence. 

The  matter  proposed  to  be  inserted  in  the  answer  is,  that 
the  mortgage  sought  to  be  foreclosed,  was  given  as  a  part  of 
the  consideration  on  the  purchase  of  the  mortgaged  prem- 
ises, and  that  the  title  to  a  part  of  the  premises  has 
failed.  The  complainants  were  not  the  vendors  of  the  prem- 
ises, nor  the  original  mortgagees.  They  hold  the  mortgage 
by  assignment  executed  prior  to  the  purchase  of  the  prem- 
ises by  Mrs.  Johnson.  She  purchased  from  Lewin,  her  co- 
defendant,  the  original  mortgagor.  The  fact  that  the  title 
made  by  Lewin  to  her  is  defective,  can  in  no  wise  affect  the 
rights  of  a  bona  fide  mortgagee,  under  a  mortgage  executed 
prior  to  the  conveyance. 


MAY  TERM,  1860.  125 

Smallwood  v.  Lewin. 

It  is  true  that,  in  the  answer  originally  filed  by  Johnson 
and  wife,  they  allege  that  the  mortgage  is  in  fact  held  by  the 
complainants  for  the  benefit  of  the  mortgagor,  but  no  proof 
whatever  has  been  produced  in  support  of  the  answer  ;  and 
in  the  absence  of  such  proof  the  new  matter  proposed  to  be 
introduced  by  the  supplemental  answer  is  irrelevant  and  im- 
material. The  rule  for  closing  testimony  and  the  time  for 
taking  proof  in  support  of  the  original  answer  has  expired. 
No  application  has  been  made  to  enlarge  the  time.  The  fair 
presumption  is  that  there  is  no  proof  in  the  defendant's  pos- 
session to  support  the  allegation  that  the  complainants  are 
acting  for  the  benefit  of  or  in  collusion  with  Lewin. 

Whatever  merits  there  may  be  in  the  proposed  defence, 
there  is  nothing  before  the  court  to  justify  the  belief  that 
there  is  a  substantial  defence  or  to  warrant  the  court  in  acting 
upon  that  assumption. 

The  answer  proposed  to  be  filed,  though  purporting  to  be 
by  Johnson  and  wife,  is  sworn  to  by  Johnson  alone.  This 
is  clearly  irregular.  The  answer  originally  filed  is  verified 
in  the  same  way.  But  the  oath  may  be  waived  by  the  com- 
plainant, and  their  filing  a  replication  is  evidence  of  such 
waiver.  The  Fulton  Bank  v.  Beach,  2  Paige  307. 

But  the  complainants  object  to  the  supplemental  answer  as 
not  being  properly  verified ;  and  if  there  were  no  more  sub- 
stantial objections,  this  alone  would  exclude  the  answer,  in 
its  present  form,  from  the  files  of  the  court. 

The  motion  is  denied,  with  costs. 

VOL.  II.  H 


ADJUDGED  IK 


THE  COURT  OF  CHANCERY 


OP  THE 


STATE  OF  NEW  JERSEY. 

OCTOBER  TERM,  1860. 


SOLOMON  MATLACK  vs.  SAMUEL  JAMES. 

1.  Partnership  property  must  first  be  applied  to  the  payment  of  the 
partnership  debts.     The  individual  creditors  are  entitled  only  to  share  the 
net  residue  after  the  debts  of  the  partnership  are  satisfied. 

2.  Real  estate,  although  the  title  stands  in  the  names  of  the  individuals 
composing  the  firm,  if  purchased  with  the  money  and  for  the  uses  of  the 
firm,  belongs  to  the  partnership,  and  is  liable  in  the  first  place  to  the  part- 
nership debts. 

3.  One  partner  cannot  convey  to  a  creditor  of  his  own,  so  as  to  give  him 
a  preference  over  the  creditors  of  the  firm,  his  undivided  interest  in  the 
real  estate  belonging  to  the  firm,  although  the  title  to  such  property  stands 
in  the  individual  names  of  the  partners — such  grantee  having  notice  of 
the  equitable  rights  of  the  firm  in  the  premises. 


Voorhees  and  Browning,  for  assignees. 
Carpenter  and  Halsted,  contra. 

THE  CHANCELLOR.  In  the  year  1855,  Samuel  James, 
James  B.  Cox,  Jacob  Iszard  and  Ira  Iszard,  partners  under 
the  name  of  James  Iszard  &  Co.,  were  engaged  in  the 
manufacture  of  glass,  at  Milford,  in  the  county  of  Bur- 

126 


OCTOBER  TERM,  1860.  127 

Matlack  v.  James. 

lington.  On  the  29th  of  August,  1855,  for  the  purpose  of 
securing  to  the  creditors  of  the  firm  an  equal  distribution 
of  their  property  and  effects,  they  executed  to  Joseph 
Trimble  and  Aaron  N.  Haines  au  assignment  of  all  the 
real  estate  whereof  they,  as  partners  in  trade,  were  seized 
or  entitled  to,  and  also  of  all  the  personal  estate  belonging 
to  said  partners,  in  trust,  to  be  distributed  among  the 
creditors  of  the  firm  in  proportion  to  their  respective  de- 
mands, pursuant  to  the  directions  of  the  "  act  to  secure  to 
creditors  an  equal  and  just  division  of  the  estates  of  debtors 
who  convey,  to  assignees  for  the  benefit  of  creditors." 

On  the  25th  of  August,  1855,  (four  days  before  the  exe- 
cution of  the  deed  of  assignment,)  Jacob  Iszard  and  Ira 
Iszard,  two  of  the  partners,  by  deed  of  bargain  and  sale 
duly  executed  for  the  consideration  therein  expressed,  of 
§2456,  conveyed  to  their  father,  Joseph  Iszard,  their  share, 
being  the  one  equal  undivided  half  part  of  the  real  estate 
known  as  the  Milford  Glass  Factory,  being  the  same  premi- 
ses specified  in  the  inventory  annexed  to  the  deed  of  assign- 
ment as  a  part  of  the  partnership  property. 

The  validity  of  the  conveyance  is  contested  by  the  as- 
signees. 

The  I.szards  held  title  to  this  land  in  their  individual 
names,  not  in  the  name  of  the  partnership  ;  but  it  is  clear, 
from  the  evidence,  that  it  constituted  in  fact  a  portion  of 
the  capital  of  the  partnership.  The  firm  was  originally 
composed  of  James  Cox  and  Whitman.  The  property 
was  conveyed  to  them  in  their  individual  names,  but  was 
in  fact  paid  for  by  the  funds  advanced  for  the  purposes  of 
the  partnership.  On  the  fourteenth  of  October,  1854, 
Jacob  Iszard  was  admitted  into  the  firm  as  an  equal 
partner  with  the  three  others,  they  conveying  to  him  one- 
fourth  of  the  real  estate,  he  paying  the  one-fourth  of  the 
estimated  value  of  the  partnership  property.  On  the  3d 
of  January,  1855,  Thomas  Whitman,  one  of  the  four  part- 
ners, sold  out  his  interest  in  the  concern  to  Ira  Iszard. 
By  deed  of  that  date,  for  the  consideration  of  $1300,  being 


128  CASES  IN  CHANCERY. 

Matlack  T.  James. 

the  amount  which  Whitman  had  put  into  the  firm,  he 
conveyed  the  equal  fourth  part  of  the  real  estate  to  Ira 
Iszard.  On  the  same  day,  Ira  Iszard  received  from  the 
other  partners  a  certificate  that  he  had  put  into  the  Mil- 
ford  Glass  Factory  firm  thirteen  hundred  dollars,  for 
which  sum  he  was  acknowledged  as  the  one-fourth  owner 
of  said  Mil  ford  Glass  Works,  with  the  appurtenances.  It 
is  conceded  that  he  paid  but  one  sum  of  $1300,  and  that 
the  amount  which  he  paid  Whitman  for  his  interest  in 
the  partnership,  constituted  him  an  equal  partner  and  the 
owner  of  the  one-fourth  of  the  real  estate  belonging  to  the 
partners.  The  evidence  leaves  no  room  for  doubt  that  the 
real  estate  was  in  fact  partnership  property,  purchased 
virtually  with  partnership  funds,  and  used  for  partnership 
purposes,  though  standing  in  the  name  of  the  individual 
partners.  It  was  held  by  the  partners  as  tenants  in  common 
in  trust  for  the  partnership. 

Joseph  Iszard,  to  whom  the  half  of  the  property  was 
conveyed,  previous  to  the  assignment  had  notice  of  the 
equitable  claim  of  the  partnership  upon  the  property. 
The  money  which  his  sons  put  into  the  firm  was  in  fact 
advanced  by  him  and  his  wife.  In  re-payment  for  the 
moneys  thus  advanced,  the  deed  was  executed.  He  knew 
that  his  sons  were  partners  in  the  concern  ;  that  the 
money  was  advanced  for  the  very  purpose  of  their  going 
into  business  as  partners,  and  that  they  had  advanced  no 
other  money  for  the  purchase  of  the  land.  When,  there- 
fore, the  sons  proposed  to  convey  to  him  their  respective 
fourth  parts  of  the  glass-house  property,  he  must  have 
known  that  it  was  their  interest  in  the  real  estate  as  part- 
ners in  the  company,  and  not  their  individual  property. 
It  is  in  evidence,  too,  that  the  certificate  given  by  the 
firm  to  Ira  Iszard,  upon  his  purchase  of  the  interest  of 
Whitman,  that  he  was  a  partner  in  the  concern,  and  en- 
titled to  an  equal  fourth  part  of  the  glass  works  property, 
was  handed  by  the  father  to  one  of  the  partners  to  be 
signed.  There  is  surely  enough  ta  charge  the  father  with 


OCTOBER  TERM,  1860.  129 


Matlack  v.  James. 


knowledge  of  the  equitable  claim  of  the  partnership  and  of 
the  creditors  of  the  partnership  at  the  time  he  accepted  the 
title  from  his  sons. 

If  no  assignment  had  been  made  by  the  partners  upon  a 
deficiency  of  assets  to  pay  the  debts  of  the  firm,  Joseph  Iszard 
would  be  regarded  in  equity  as  a  trustee  of  this  land  for  the 
benefit  of  the  creditors  of  the  partnership. 

The  partnership  property  must  first  be  applied  to  the  pay- 
ment of  the  partnership  debts.  The  individual  creditors  are 
entitled  only  to  share  the  net  residue  after  the  debts  of  the 
partnership  are  satisfied. 

It  is  clear,  therefore,  that  Joseph  Iszard  cannot  hold 
this  property  against  the  creditors  of  the  partnership,  and 
that  he  will  not  be  permitted  in  equity  to  receive  any  part 
of  the  proceeds  of  the  sale  until  the  claims  of  the  creditors 
are  satisfied. 

Regarding  the  case  as  now  before  the  court  upon  a  mere 
application  by  Joseph  Iszard  for  the  surplus  money  arising 
from  the  proceeds  of  the  sale  under  the  mortgage,  the  applica- 
tion must  be  denied. 

Regarding  it  as  a  hearing  upon  cross-bill  and  answer,  in 
pursuance  of  the  suggestion  of  the  late  Chancellor  and  in  ac- 
cordance with  the  agreement  of  counsel,  I  am  of  opinion  that 
the  deed  to  Joseph  Iszard  should  be  held  void  as  against  the 
title  of  the  assignees. 

The  order  will  be  made  without  costs. 

1.  Because  I  am  not  satisfied  of  the  existence  of  any 
actual  fraud  or  intention  to  defraud  in  the  execution  of 
the  conveyance  to  Joseph  Iszard.  These  young  men,  the 
sons  of  the  grantee,  entered  this  partnership  ignorant  of 
its  affairs,  and  if  not  totally  bankrupt  when  they  entered 
it,  it  soon  proved  a  total  wreck  through  no  fault  of  theirs. 
Its  management  was  in  other  hands.  The  whole  money 
paid  in  by  them  was  advanced  by  their  parents,  and  it 
was  natural  that  they  should  attempt  to  protect  their  in- 
terests. The  deed,  I  am  willing  to  believe,  was  executed 
with  no  fraudulent  design,  but  with  an  honest  purpose, 


130  CASES  IN  CHANCERY. 

Gaskill  v.  Sine. 

though    clearly  under    a   mistaken    apprehension   of   their 
rights. 

2.  The  course  pursued  by  the  assignees  in  the  prosecution 
of  their  claim  has  neither  been  ingenuous  nor  consistent  with 
fair  dealing. 

CITED  in  Deveny  v.  Mahoney,  8  C.  E.  Or.  249. 


JOB  H.  GASKILL  vs.  ALLEN  W.  SINE  and  others. 

1.  If  no  replication  has  been  filed,  the  facts  stated  in  the  answer  must 
be  taken  as  true  on  the  hearing. 

2.  A  decree  rendered  against  the  complainant  was  opened  upon,  it  ap- 
pearing that  the  cause  had  been  submitted  to  the  court  by  the  counsel  of 
the  complainant  under  the  misapprehension  that  an  answer  to  the  replica- 
tion had  been  filed. 

3.  Had  the  counsel  upon  both  sides  acted  under  the  same  misapprehen- 
sion, and  the  evidence  in  the  cause  been  taken,  the  filing  of  the  replication 
would  have  been  regarded  as  a  mere  form,  and  would  have  been  permit- 
ted at  the  hearing  as  a  matter  of  course. 


Wilson,  for  complainant. 
Attorney- General,  contra. 

THE  CHANCELLOR.  To  a  bill  of  foreclosure,  the  defend- 
ant, by  his  answer,  set  up  two  distinct  defences,  one  of  which 
was  that  the  complainant,  who  was  the  assignee  of  the  mort- 
gage, acted  as  the  mere  agent  or  trustee  of  the  mortgagee  in 
procuring  the  assignment,  and  that  the  consideration  paid 
for  the  assignment  was  the  money  of  the  mortgagee.  No  re- 
plication having  been  filed  to  the  answer,  the  Chancellor 
held,  in  accordance  with  the  well-settled  rule  of  practice,  that 
the  facts  thus  set  up  as  a  defence  must  be  taken  as  true,  and 
on  this  ground  dismissed  the  complainant's  bill. 

The  opinion  was  delivered  on  the  2d  of  February,  1859, 
and  on  the  next  day  the  final  decree  was  signed  and  filed. 
On  the  fourth  of  the  same  month,  upon  the  petition  of 
the  complainant's  counsel,  an  order  was  made  upon  the 
defendants  to  show  cause,  on  the  first  day  of  the  next 
term,  why  the  decree  should  not  be  opened,  and  the  com- 


OCTOBER  TERM,  1860.  131 

Gaakill  v.  Sine. 

plainant  have  leave  to  file  his  replication  and  produce  his 
proofs.  On  the  5th  of  February,  the  court  was  closed 
by  reason  of  a  vacancy  in  the  office  of  Chancellor.  The 
cause  is  now  brought  to  hearing  upon  the  petition  and 
proofs. 

There  has  been  no  laches  on  the  part  of  the  complainant, 
in  seeking  to  open  the  decree.  The  application  was  made 
immediately  after  the  filing  of  the  decree.  The  case  must 
now  be  heard  and  decided  as  of  the  term  when  the  rule  to 
show  cause  was  taken.  The  complainant  is  not  responsible 
for  the  subsequent  delay. 

The  affidavit  of  the  complainant  himself,  of  his  solicitor 
and  counsel,  have  all  been  taken.  From  the  evidence, 
it  is  manifest  that  the  case  was  conducted  and  argued,  on 
the  part  of  the  complainant,  under  the  impression  that  a 
replication  had  been  filed.  The  complainant  swears  that 
the  fact  set  up  by  the  answer  as  a  defence,  and  from  the 
state  of  the  pleadings  assumed  by  the  Chancellor  as  true, 
without  evidence,  was  not  true  in  point  of  fact ;  that  he 
was  prepared  with  evidence  to  disprove  the  allegation, 
had  any  proof  been  offered  in  its  support,  and  that  he 
abstained  from  offering  the  evidence,  solely  because  he  was 
advised  by  his  counsel  that  such  evidence  was  unnecessary 
on  his  part,  as  long  as  the  allegation  of  the  defendant  was 
unsupported  by  proof. 

The  solicitor  and  counsel  of  the  complainant  testify 
that  the  cause  was  conducted  and  argued  with  the  under- 
standing and  belief,  upon  their  part,  that  a  replication  had 
been  filed,  and  on  that  ground,  they  deemed  any  evidence 
on  the  part  of  the  complainant  unnecessary.  A  natural 
reason  for  the  mistake  is  found  in  the  fact  that  the  solicitor 
who  prepared  the  cause  for  argument,  was  substituted, 
long  after  the  answer  was  filed,  in  the  stead  of  the  original 
solicitor  in  the  cause,  who  was  removed  by  death,  and  that 
the  cause  was  several  years  pending  before  the  evidence  was 
taken. 

The  case  presented  is,  that  the  complainant  has  lost  his 


132  CASES  IN  CHANCERY. 

Qaskill  v.  Sine. 

cause,  not  because  the  right  of  the  case  is  against  him,  but 
from  a  misapprehension,  on  the  part  of  his  counsel,  as  to  the 
true  state  of  the  pleadings. 

Had  the  counsel  upon  both  sides  acted  under  the  same 
misapprehension,  and  the  evidence  in  the  cause  been 
taken,  the  filing  of  the  replication  would  have  been  re- 
garded as  a  matter  of  form,  and  would  have  been  permit- 
ted at  the  hearing  nune  pro  tune,  as  a  matter  of  course. 
Mitf.  Plead,  (ed.  1816)  261 ;  Moseley  296,  Rodney  v.  Hare; 
Cooper's  Eq,  PL  331 ;  Smith  v.  West,  3  Johns.  Ch.  R.  363 ; 
1  Smith's  Ch.  Pr.  336  ;  Pierce  v.  West's  Ex'rs,  1  Peters'  C. 
C.  R.  351 ;  Scott  v.  Jackson's  Ex'rs,  1  Bibb  277 ;  Demarre 
v.  Driskill,  3  Black.  115;  2  Danidl's  Ch.  Pr.  966,  note  1, 
971 ;  WyatCs  Pr.  Reg.  376  j  1  Newland's  Chan.  Pr.  253 ;  1 
Eq.  Cas.  Ab.  43 ;  Donegall  v.  Warr,  Abridg.  of  Gas.  in  Eq., 
C.  7  F.,  §  4. 

The  only  doubt  as  to  the  propriety  of  opening  the  decree, 
arises  from  the  fact  that  the  attention  of  the  counsel  of  the 
complainant  was  called  to  the  want  of  the  replication,  on  the 
argument.  The  counsel  of  the  defendant  then  claimed  a 
decree  upon  that  ground,  and,  in  strictness,  the  complainant 
should,  then  and  there,  have  applied  for  leave  to  file  his 
replication. 

Had  the  defendant's  counsel,  with  a  full  knowledge  that 
DO  replication  had  been  filed,  proceeded  with  the  argu- 
ment, and  thus  speculated  upon  the  opinion  of  the  court, 
I  should  have  no  hesitation  in  denying  the  motion.  But 
neither  the  complainant  nor  the  solicitor  were  present  at 
the  hearing,  and  the  counsel  acted  upon  the  conviction 
that  the  replication  had,  in  fact,  been  filed.  Under  such 
circumstances,  it  would  be  too  strict  to  deprive  the  com- 
plainant of  an  opportunity  of  proving  his  case  through 
the  mere  misapprehension  of  counsel.  I  am  confirmed 
in  this  view  of  the  case,  from  the  fact  that  the  Chancel- 
lor, immediately  after  pronouncing  his  opinion  and  sign- 
ing the  decree,  granted  the  rule  to  show  cause.  Had  the 
conduct  of  the  cause  by  counsel,  upon  the  hearing,  been 


OCTOBER  TERM,  1860.  133 

Newark  Lime  and  Cement-  Co.  v.  Morrison. 

such  as  to  charge  the  party  with  gross  laches  in  not  then  ap- 
plying for  leave  to  file  the  replication,  the  rule  to  show  cause 
•would  not  have  been  granted. 

The  motion  to  set  aside  the  decree  having  been  made  at 
the  same  term  in  which  the  decree  was  signed,  and  before 
enrollment,  there  can  be  no  objection  on  that  ground. 

The  rule  to  show  cause  is  made  absolute.  The  decree 
must  be  opened,  and  the  defendant  permitted  to  file  his  repli- 
cation, upon  the  payment  of  all  costs  incident  to  the  final 
hearing  and  decree.  Each  party  to  pay  his  own  costs  upon 
the  rule  to  show  cause. 


THE  NEWARK  LIME  AND  CEMENT  COMPANY  vs.  CHARLES 
D.  MORRISON  and  others. 

r~  1.  A  mechanics'  lien  under  the  statute  takes  priority  upon  the  building 
over  a  prior  mortgage  upon  the  land. 

2.  But  the  supplement  of  16th  March,  1859,  which  creates  a  lien  for 
repairs,  makes  it  subject  to  any  mortgage  prior  to  the  filing  of  the  lien. 

3.  In  this  case  the  premises  ordered  to  be  sold  entire,  and  relative  value 
of  building  and  land  ascertained. 

Ranney,  for  complainant. 
Keasbey,  for  lien  creditors. 
Frdinghuysen,  for  second  mortgagee. 

THE  CHANCELLOR.  The  only  question  in  the  cause  is  a 
question  of  priority  between  the  mortgagees  and  claim- 
ants under  liens  filed  by  mechanics  and  material  men. 
The  premises  consist  of  a  lot  on  Washington  street,  in 
the  city  of  Newark,  30  feet  9  inches  front,  with  an  aver- 
age depth  of  about  267  feet,  upon  which  there  was  erected 
a  brick  building,  30  feet  6  inches  front,  by  50  feet  deep, 


134  CASES  IN  CHANCERY. 

Newark  Lime  and  Cement  Co.  v.  Morrison. 

and  four  stories  high.  The  mortgages,  it  is  admitted,  were 
all  given  and  recorded,  and  constituted  valid  subsisting  en- 
cumbrances on  the  lot  prior  to  and  at  the  time  of  the  erection 
of  the  building. 

To  secure  the  payment  of  debts  incurred  in  the  erection  of 
the  building,  liens  were  filed  by  mechanics  and  material  men 
under  the  provisions  of  the  statute.  By  virtue  of  judgments 
recovered  upon  the  said  claim,  and  executions  issued  thereon, 
the  premises  were  sold  to  the  lien-holders,  on  the  24th  of 
April,  1860,  and  were  conveyed  to  them,  on  the  27th  of  the 
same  month,  by  deed  duly  executed.  It  is  not  perceived 
that  the  sale  and  conveyance  by  the  sheriff  can  at  all  affect 
the  question  of  priority.  The  purchasers  took,  by  virtue  of 
the  sale  and  conveyance,  precisely  the  interest  which  the  lien- 
holders  had  before  the  sale  under  the  statute.  The  simple 
question  is,  what  is  the  nature  and  extent  of  the  encumbrance 
which  the  statute  gives  to  the  lien-holder  upon  the  building? 
Does  the  lien  upon  the  building  take  priority  over  a  prior 
mortgage  upon  the  land  ? 

So  far  as  relates  to  the  encumbrance  upon  the  land, 
there  is  no  controversy.  It  is  admitted  that  the  lien  cre- 
ated by  the  statute  does  not  and  cannot  interfere  with  the 
prior  encumbrance  created  by  the  mortgage  upon  the  land 
on  which  the  building  is  erected.  The  numerous  author- 
ities cited  upon  the  argument  sustain  this  position — a 
position  so  clear  as  scarcely  to  require  an  authority  in  its 
support.  It  is  equally  clear  upon  the  principles  of  the 
common  law,  and  independent  of  any  statutory  provision, 
that  any  building  or  improvement  erected  upon  the  land 
subsequent  to  the  execution  of  the  mortgage  became  a 
part  of  the  land,  and  subject  to  the  existing  encumbrance. 
And  it  may  be  safely  affirmed  that  the  mortgagee  could 
not  be  deprived  of  the  benefit  and  advantage  of  the  inci- 
dental benefit  derived  from  a  subsequent  improvement, 
except  by  clear  and  express  legislative  provision.  In  a 
case  of  doubt,  his  acknowledged  common  law  right  would 
prevail. 


OCTOBER  TERM,  1860.  135 

Newark  Lime  and  Cement  Co,  v.  Morrison. 

But  it  cannot  be  affirmed  that  the  mortgagee  has  any 
vested  rights  in  any  building  or  improvement  not  erected  at 
the  date  of  the  mortgage,  or  that  a  lien  which  gives  to  the 
party  whose  labor  is  employed  or  materials  expended  in  the 
erection  of  such  building  trenches  upon  any  vested  right  of 
the  mortgagee  or  infringes  any  constitutional  provision.  The 
wisdom  or  policy  of  such  an  enactment  is  a  matter  exclu- 
sively for  legislative  consideration. 

Does  the  statute,  then,  give  to  the  lien-holder  a  precedence 
of  encumbrance  upon  the  building  over  the  prior  mortgagee 
upon  the  premises?  The  first  section  of  the  act  declares 
that  the  debt  shall  be  a  lien  on  the  building  and  on  the  land. 
The  eleventh  section  declares  that  when  the  building  and  lot 
are  sold  by  virtue  of  the  lien,  the  deed  shall  convey  to  the 
purchaser  the  building,  free  from  any  former  encumbrance  on 
tlie  lands ;  and  shall  convey  the  estate  in  said  lands  which 
said  owner  had  at  or  any  time  after  the  commencement  of 
the  building  within  one  year  before  the  filing  such  claim  iu 
the  clerk's  office,  subject  to  all  prior  encumbrances,  "  and 
free  from  all  encumbrances  or  estates  created  by  or  obtained 
against  such  owner  afterwards,  and  from  all  estates  created 
by  deed  or  mortgage  made  by  such  owner,  or  any  claiming 
under  him,  and  not  recorded  or  registered  iu  the  office  of  the 
clerk  of  the  county  at  the  commencement  of  said  building." 
This  section  clearly  declares,  as  it  was  designed  to  do,  the 
order  of  priority  of  the  encumbrance  of  the  lieu.  Upon 
the  building  itself  it  takes  priority  of  any  former  encum- 
brance on  the  lands — upon  the  lands,  it  is  subject  to  the  lieu 
of  all  prior  encumbrances  recorded  or  registered  at  the  com- 
mencement of  the  building. 

This  construction  of  the  statute  was  adopted  by  Chancel- 
lor Williamson,  in  Whitenack  v.  Noe,  3  Stockt.  321,  413,  and 
was  subsequently  applied  in  other  cases. 

The  supplement  to  the  general  act,  which  was  approved 
on  the  16th  of  March,  1859,  and  which  creates  a  lien  in 
favor  of  work  done  aud  materials  furnished  for  repairing 


136  CASES  IN  CHANCERY. 

Peer  v.  Cookerow. 

buildings,  makes  the  encumbrance  of  the  lien  subject  to  any 
mortgage  prior  to  the  filing  of  the  lien.  There  is  a  very 
obvious  reason  for  the  distinction  made  between  the  lien  for 
the  building  and  a  lien  for  repairs  of  the  building. 

The  mortgagees  in  this  case  claim  that  there  was  a  build- 
ing upon  the  premises  at  the  date  of  the  mortgage,  which 
was  removed  to  make  way  for  the  new  building  upon  which 
the  liens  attach,  and  to  the  value  of  which  it  is  insisted  they 
are  entitled.  As  the  lien-holders  assent  to  this  claim,  it  will 
be  allowed,  as  a  matter  of  agreement,  without  expressing  any 
opinion  whatever  upon  the  validity  of  the  claim.  The 
mortgage  premises  must  be  sold  entire,  and  the  relative 
value  of  the  building  and  land  ascertained  in  the  mode 
adopted  in  Whitenack  v.  Noe,  or  in  such  other  mode  as  may 
be  agreed  on  by  the  parties. 

CITED  in  Whiteheatfa  Etfrs  v.  First  Methodist  Protestant  Church,  New- 
ark, 2  McCar.  137. 


THOMAS  J.  PEER  and  others  vs.  JOSEPH  COOKEROW. 

1.  After  decree,  if  the  defendant  or  his  representative  have  an  interest 
in  the  further  prosecution  of  the  suit,  the  suit  may  be  revived  at  his  in- 
stance. 

2.  A  defendant  having  a  beneficial  interest  may  exhibit  a  bill  of  re- 
vivor  for  the  purpose  of  appealing  from  decree. 

3.  The  mere  fact  that  three  years  have  elapsed  since  the  signing  of 
decree,  cannot  be  set  up  on  demurrer  to  the  bill  of  revivor. 

4.  The  objection  arising  from  lapse  of  time  is  a  mere  matter  of  limita- 
tion, which  must  be  pleaded,  even  though  the  objection  appear  upon  the 
record. 

B.  Williamson,  for  demurrant. 
Attorney- Generaly  contra. 

THE  CHANCELLOR.  The  complainant  in  the  original 
suit  having  died  after  decree,  and  her  interest  in  the 
subject  matter  of  the  suit  being  vested  in  her  devisee, 


OCTOBER  TERM,  1860.  137 


Peer  v.  Cockcrow. 


the  defendants  in  the  original  bill  have  filed  a  bill,  in  the 
nature  of  a  bill  of  revivor,  to  revive  the  suit  in  favor  of  the 
devisee.  To  this  bill  there  is  a  general  demurrer  for  want 
of  equity. 

It  appears  upon  the  face  of  the  bill  of  revivor  that  the 
sole  design  of  reviving  the  suit  is  that  an  appeal  may  be 
taken  from  the  decree.  But  if  the  parties  have  the  right 
of  appeal,  and  if  the  revival  of  the  decree  is  necessary  for 
the  purpose  of  appeal,  they  must  have  the  right  to  revive  the 
suit.  The  complainants  in  the  bill  of  revivor  are  the  parties 
aggrieved  by  the  decree,  and  have,  therefore,  the  right  of  ap- 
peal. Nix.  Dig.  98,  §  80. 

After  a  decree,  the  defendants,  as  well  as  the  plaintiffs, 
are  entitled  to  a  bill  of  revivor;  and  although  originally 
the  right  appears  to  have  been  restricted  to  those  cases  in 
which  the  defendant  had,  or  was  supposed  to  have,  a 
beneficial  interest  in  the  decree,  yet  it  is  now  well  settled 
that  if  the  defendant  or  his  representative  have  an  interest 
in  the  further  prosecution  of  the  suit,  the  suit  may  be  re- 
vived at  his  instance.  1  Clifford's  PL,  by  Jeremy,  79,  and 
note  q;  Lord  Stowell  v.  Cole,  2  Vern.  219,  (Ra'dhby's  ed.t 
note  1 ;)  Horwood  v.  Schmedes,  12  Vesey  311. 

"  The  good  sense  is  when  the  defendant  can  derive  a 
benefit  from  the  further  proceeding,  he  may  revive,  unless 
there  is  a  general  rule  against  it."  Williams  v.  Cook,  10 
Ves.  406. 

A  defendant's  right  of  appeal  cannot  be  defeated  by  the 
complainant's  death  after  the  decree.  He  has  the  same 
interest  to  revive  after  the  decree  that  the  complainant 
had  before,  viz.,  the  maintenance  of  his  just  rights.  It. 
was  at  one  time  deemed  necessary,  where  the  suit  abated  after 
the  appeal  was  taken,  to  revive  the  suit  in  the  court  below  ; 
the  practice  now  is  for  the  appellate  tribunal  to  make  the  or- 
der. 1  DanidCs  Ch.  Pr.  1648. 

It  is  urged  that  the  time  for  appealing  has  expired,  and, 
therefore,  the  parties  can  derive  no  benefit  from  further 
proceedings.  But  this  does  not  appear  upon  the  record,  and 


138  CASES  IN  CHANCERY. 

Cox  v.  Corkendall. 

therefore  is  not  the  subject  matter  of  demurrer.  Besides,  if 
the  demurrant  could  avail  himself  of  mere  matter  in  pais,  the 
parties  aggrieved  by  the  appeal  may  have  been  infants,  feme 
covert  or  insane.  The  mere  fact,  therefore,  that  three  years 
have  elapsed  since  the  signing  of  the  decree  does  not  warrant 
the  conclusion  that  the  right  of  appeal  is  gone.  The  objec- 
tion, moreover,  arising  from  lapse  of  time  is  a  mere  matter 
of  limitation,  which  must  be  pleaded,  even  though  the  objec- 
tion appear  upon  record.  A  writ  of  error  will  not  be  quashed 
upon  motion,  even  though  it  appear  to  have  been  brought 
more  than  twenty  years  after  judgment.  2  Strange  837, 
1055  j  1  Archb.  Prac.  209. 

The  objection  raised  upon  the  argument  for  want  of  proper 
parties  cannot  prevail.  The  parties  to  the  original  decree, 
who  are  not  made  parties  to  the  present  suit,  have  no  real  in- 
terest in  the  controversy.  A  bill  of  revivor  merely  substan- 
tiates the  suit,  and  brings  before  the  court  the  parties  neces- 
sary to  see  to  the  execution  of  the  decree  and  to  be  the 
objects  of  its  operations.  Story's  Eq.  PL,  §  376 ;  Cooper's 
Eq.  PL  71. 

The  demurrer  is  overruled. 

CITED  in  Benson  v.  Wolverlon,  1  0.  E.  Or.  112. 


Cox  et  ux.  vs.  CORKENDALL. 

1.  When  legacies  are  directed  to  be  paid  out  of  the  estate  of  the  testator, 
the  real  estate  is  charged  with  the  legacies. 

2.  So  when  the  lands  are  devised  to  the  executors,  who  are  directed  to 
pay  the  legacies. 

3.  The  general  rule,  that  a  legacy  bears  interest  from  the  lime  it  is  pay- 
able, admits  of  an  exception  where  a  legacy  given  by  a  parent  to  a  minor 
child  is  made  payable  at  a  future  day,  and  no  provision  is  made  for  the 
support  of  the  legatee  in  the  meantime. 

4.  Interest  not  allowed  under  the  language  of  the  will  in  question  and 
the  circumstances  of  the  case. 


OCTOBER  TERM,  1860.  139 

Cox  v.  Corkendall. 
McCarter,  for  complainants. 

Shepherd,  for  defendant. 

THE  CHANCELLOR.  Jonathan  Corkendall,  of  the  county 
of  Sussex,  by  his  last  will  and  testament,  bearing  date  on  the 
first  day  of  August,  1828,  gave,  devised,  and  bequeathed  as 
follows:  "I  give  and  bequeath  to  ray  beloved  wife  Mary  a 
good  and  comfortable  living,  during  her  natural  lifetime,  out 
of  my  estate.  Next,  I  give  and  bequeath  to  my  daughter 
Susan,  $400,  and  to  my  daughters  Lydia  Ann  and  Maria, 
each,  the  sum  of  $200,  which  several  bequests  are  to  be  paid 
after  the  death  of  their  mother.  Also,  I  give  and  bequeath 
to  my  two  daughters  Lydia  Ann  and  Maria,  each,  one  good 
cow  and  one  good  feather  bed  and  bedding,  and  six  sheep, 
to  be  paid  to  them  when  called  for."  "  All  of  which  several 
legacies  are  to  be  paid  out  of  my  estate." 

"  And  lastly,  I  give  all  my  lands  and  personal  property, 
after  my  debts  are  paid,  to  my  two  sons,  Levi  and  Moses,  to 
be  equally  divided  between  them ;  and,  furthermore,  I  make, 
constitute,  and  appoint  my  two  sons,  Levi  and  Moses,  execu- 
tors of  this  ray  last  will  and  testament." 

This  bill  is  filed  by  Lydia  Ann,  a  daughter  of  the  testator, 
and  one  of  the  legatees  named  in  the  will,  and  her  husband, 
Jeptha  Cox,  against  the  devisees  named  in  the  will,  to  have 
the  legacies  declared  a  charge  upon  the  real  estate,  and  to 
recover  the  amount  thereof  and  the  value  of  the  specific 
legacies,  with  interest. 

Upon  the  main  question  made  by  the  bill,  there  can  be 
no  dispute.  The  testator  directs  the  legacies  to  be  paid 
out  of  his  estate.  He  gives  his  estate,  real  and  personal, 
after  the  payment  of  debts,  to  his  two  sons,  and  appoints 
them  his  executors.  The  legacies  are  a  charge  upon  the 
land,  and  must  be  so  declared.  Where  legacies  are  di- 
rected to  be  paid  out  of  the  estate  of  the  testator,  the  real 
estate  is  charged  with  the  legacies.  Lepet  v.  Carter,  1 


140  CASES  IN  CHANCERY. 

Cox  r.  Corkendall. 

Ves.,  Sr.,  499;  Harris  v.  Fly,  7  Paige  421  ;  Van  Winkle  v. 
Van  Houten,  2  #iW*  Cft.  R.  172;  2  Jaraan  on  Wills  513. 

So  where  the  land  is  devised  to  executors  who  are  directed 
to  pay  the  legacies. 

The  only  question  open  to  dispute,  is  the  amount  that  the 
legatee  is  entitled  to  recover.  The  will  is  dated  on  the  1st 
of  August,  1828,  and  the  testator  died  on  the  6th  of  that 
month.  The  legacy  of  $200  was  payable  on  the  death  of 
the  mother.  The  specific  bequest,  viz.,  one  cow,  a  good 
feather  bed  and  bedding,  and  six  sheep,  are  "  to  be  paid  when 
called  for."  The  widow  died  on  the  15th  of  July,  1854, 
(twenty-six  years  after  the  death  of  the  testator),  at  which 
time  the  pecuniary  legacy,  by  its  terms,  is  made  payable.  On 
the  27th  of  June,  1857,  the  complainants  made  a  written 
demand  of  the  defendants,  for  the  pecuniary  legacy,  with 
interest,  and  also  for  the  delivery  of  the  specific  bequests. 

The  complainants  claim  interest  on  the  pecuniary  legacy 
from  the  death  of  the  father,  on  the  ground  that  the  legatee 
was  a  minor  at  the  death  of  the  testator. 

The  general  rule  that  a  legacy  bears  interest  from  the 
time  it  is  payable,  admits  of  an  exception  where  a  legacy 
given  by  a  parent  to  a  minor  child,  is  made  payable  at  a 
future  day,  and  no  provision  is  made  for  the  support  of 
the  legatee,  in  the  meantime.  In  such  case,  as  the  parent 
is  bound  for  the  support  of  the  child,  and  as  the  presumption 
is  that  it  was  not  the  intention  of  the  testator  to  leave  the 
child  unprovided  for,  equity  presumes  that  his  intention  was 
that  the  legacy  should  draw  interest  from  his  death,  and  the 
same  rule  of  construction  is  adopted  at  law.  Heath  v.  Perry, 
3  Atkyns  101;  Harvey  v.  Harvey,  2  P.  Wms.  21 ;  2  Hope)' 
on  Leg.  1257. 

In  all  the  early  cases  in  equity,  it  will  be  found  that  tin's 
rule  of  construction  was  adopted  upon  a  bill  filed  to  make 
provision  for  an  infant  child,  out  of  the  estate  of  the  parent, 
until  he  was  of  age.  And  the  altowauce  is  made  by  way  of 
maintenance,  and  the  court  allow  legal  interest,  or  less,  as 
they  deem  equitable. 


OCTOBER  TERM,  1860.  141 

Cox  v.  Corkendall. 

All  this  seems  to  rest  upon  the  equity  of  the  case,  rather 
than  upon  any  clearly  defined  or  fairly  presumed  intent  of 
the  testator. 

In  Heath  v.  Perry,  3  Atkyns  101,  the  bill  was  filed  to  re- 
cover interest  upon  legacies  which  were  payable,  by  the 
terms  of  the  will,  when  the  legatees  were  twenty-one. 
Lord  Chancellor  Hardwicke  said,  "  Cases  of  this  kind,  how 
far  a  legatee,  who  is  not  entitled  to  the  payment  of  his 
legacy  immediately,  shall  have  interest  in  the  meantime, 
depend  upon  particular  circumstances — some  upon  rela- 
tionship, some  upon  the  necessities  of  the  legatees,  and 
most  of  them  upon  the  particular  framing  of  wills — and 
there  is  hardly  one  case  that  cau  be  cited,  that  is  a  precedent 
for  another." 

In  the  case  now  under  consideration,  it  appears  that  the 
testator,  at  the  date  of  his  will,  and  at  the  time  of  his  death, 
was  the  owner  of  a  small  farm,  upon  which  he  resided  with 
the  families  of  his  two  sons,  both  of  whom  were  married. 
His  personal  estate  was  insufficient  to  pay  his  debts.  After 
the  testator's  death,  the  mother,  with  her  two  unmarried 
daughters,  continued  with  the  sons  upon  the  farm.  The 
daughters,  as  in  their  father's  lifetime,  continued  to  work  for 
their  support,  sometimes  from  home  and  sometimes  at  home; 
where  they  were  employed  in  sewing  or  weaving.  There  is, 
as  there  always,  in  such  cases,  will  be,  great  conflict  in  the 
evidence,  as  to  the  comparative  value  of  their  labor,  and  the 
services  they  rendered  in  their  brother's  family.  But  the 
material  fact  in  the  case  is  clearly  established,  that  for  years 
after  the  father's  death,  and  down  to  the  time  of  her  mar- 
riage, the  legatee  had  a  home  with  her  mother,  in  her  broth- 
er's family,  and  there,  however  humble  may  have  been  that 
home,  and  however  laborious  her  life  may  have  been,  she 
was  trained  to  habits  of  industry.  She  enjoyed  the 
counsels  and  society  of  her  mother,  the  companionship 
and  protection  of  her  brother,  the  nameless  and  inestima- 
ble privileges  of  a  home,  surrounded  by  her  family,  advan- 

VOL.  II.  I 


142  CASES  IN  CHANCERY. 

Cox  v.  Corkendall. 

tages  far  greater  than  could  possibly  have  been  purchased  by 
the  interest  to  be  derived  from  a  legacy  small  as  the  present, 
or  far  greater  in  amount. 

Upon  the  face  of  the  will,  it  is  apparent  that  the  testator 
never  intended  that  interest  should  be  paid  upon  the  legacy 
before  the  death  of  the  mother.  He  expected  precisely  what 
occurred,  viz.,  that  the  daughter  would  find  a  home,  so  long 
as  it  was  needed,  with  her  mother,  upon  the  homestead.  That 
the  specific  legacies  should  be  paid  whenever  the  daughter 
was  in  a  situation  to  require  them,  and  that  the  money  legacy 
should  be  received,  without  interest,  on  the  mother's  death. 

It  will  be  observed  that  the  complainants  are  not  here  ask- 
ing for  a  maintenance  during  her  minority,  in  the  shape  of 
interest  upon  the  legacies.  She  comes,  after  the  lapse  of  a 
quarter  of  a  century,  a  married  woman,  with  her  husband, 
asking  the  payment  of  the  legacy  given  by  her  father,  with 
more  than  thirty  years'  interest.  The  claim  has  no  support, 
either  in  the  intentions  of  the  testator,  or  in  the  principles  of 
equity.  The  complainant  is  entitled  to  the  legacy,  with  inter- 
est from  the  death  of  the  testator's  widow. 

The  evidence  in  regard  to  the  specific  bequests,  is  far  from 
satisfactory,  resulting,  mainly,  from  lapse  of  time.  The  lega- 
tee came  of^age,  according  to  her  own  evidence,  in  1830. 
She  was  married  in  1860.  She  is,  with  her  husband,  liti- 
gating in  equity,  with  her  brother,  for  a  few  personal  chattels 
of  trifling  value.  The  whole  claim  might  properly  be  dis- 
carded as  a  stale  demand,  but  as  the  defence  is  not  rested  upon 
this  ground,  I  shall  allow  the  value  of  the  sheep  from  the 
time  of  the  written  demand.  The  evidence  shows  that  the 
cow  and  bed  and  bedding  have  been  delivered. 

CITED  in  Jordan  v.  Clark,  1  C.  E.  Or.  245. 


OCTOBER  TERM,  1860.  143 


Wilson  v.  Hill. 


HARRIS  WILSON  vs.  JOSIAH  HILL  and   CATHARINE,  his 
wife  and  FRANCES  WATTS. 

1.  The  question  is  well  settled  at  common  law  that  the  cancellation  of  a 
deed  by  consent  of  parties  will  not  divest  the  grantee  and  re-vest  in  the 
grantor  an  estate  which  has  once  vested. 

2.  The  title  to  lands  vested  in  a  married  woman  by  an  unrecorded  deed 
cannot  be  divested  by  her  parol  consent  that  such  deed  may  be  canceled, 
and  a  conveyance  made  by  her  grantor  to  her  husband. 

3.  The  testimony  of  a  married  woman,  illegally  elicited  before  a  grand 
jury  on  a  charge  of  bigamy  against  her  husband,  is  not  admissible  against 
her  on  a  question  of  property. 

4.  Can  a  grand  juryman,  being  a  witness  in  a  suit  respecting  property, 
disclose  the  secrets  of  the  grand  jury  room?     Query, 

5.  A  feme  covert  was  seized  of  certain  lands.     She  being  ill,  consented, 
at  the  solicitation  of  her  husband,  to  the  cancellation  of  her  deed  and  to  a 
conveyance  from  her  grantor  to  her  husband.     During  her  lifetime  her 
husband  married  a  second  wife.     Being  imprisoned  on  charge  of  bigamy, 
he  and  his  mistress  re-conveyed  the  lands  to  his  wife,  she  and  her  husband 
executing  a  mortgage  for  the  benefit  of  the  husband  to  a  third  party  ;  this 
mortgage  was  afterwards  assigned  to  the  complainant,  who  was  a  lawyer, 
the  counsel  of  the  husband,  and  had  knowledge  that  the  property  had  been 
held  by  the  husband  in  trust,  and  that  the  mortgage  was  also  held  in  trust 
for  the  husband — it  was  held  that  the  complainant  had  sufficient  knowl- 
edge to  put  him  on  inquiry  ;  that  he  was  not  a  bona  fide  holder,  and  that 
the  mortgage  was  void  in  his  hands. 


Zabriskie,  for  complainant, 
Gilchrist,  for  defendants. 

THE  CHANCELLOR.  This  bill  is  filed  to  foreclose  a  mort- 
gage purporting  to  be  given  by  Josiah  Wilson  and  Catharine, 
his  wife,  to  Peter  Bentley,  and  by  him  assigned  to  the  com- 
plainant. Frances  Watts  is  made  a  defendant,  as  the  owner 
of  the  equity  of  redemption. 

i  The  execution  of  the  bond  and  mortgage  is  duly 
proved.  They  respectively  bear  date  on  the  26th  of 
December,  1854,  and  are  given  to  secure  the  payment 
of  $1500.  The  mortgage  is  recorded  upon  the  same  day. 


144  CASES  IN  CHANCERY. 

Wilson  v.  Hill. 

On  the  same  26th  of  December  a  deed  was  executed  by 
Josiah  Hill  and  Catharine,  his  wife,  to  Frances  Watts, 
acknowledged  on  the  27th,  and  recorded  on  the  28th  of 
that  month.  The  .deed  contains  this  clause,  viz.,  "  subject 
to  the  operation  of  two  mortgages  on  the  said  premises — 
one  for  $600  and  the  other  for  $1500 — which  the  said 
Frances  Watts  hereby  covenants  and  agrees  with  the 
said  Josiah  Hill  to  pay  off,  with  the  interest  on  the  same, 
Laving  retained  a  sufficient  sum  to  pay  the  same  out  of  the 
consideration  money." 

)  The  scrivener  swears  that  the  clause  was  inserted  in  pur- 
suance of  the  agreement  between  the  parties.  This,  upon  the 
face  of  the  papers  and  upon  the  complainant's  evidence,  makes 
a  very  plain  case  for  the  mortgagee. 

But  the  defendant,  styled  in  the  bill  Frances  Watts, 
has  filed  an  answer,  in  which  she  alleges  that  she  now  is, 
and  at  the  date  of  these  instruments  was,  the  lawful  wife 
of  Josiah  Hill ;  that  they  were  married  at  the  Sailors' 
Bethel,  in  Boston,  by  Elder  Rand,  in  the  year  1839;  that 
he  was  at  that  time  a  Congrcgationalist  minister;  that 
they  lived  together  as  man  and  wife  for  fourteen  years, 
and  down  to  within  a  short  period  of  the  execution  of 
these  papers,  when  her  husband  married  a  servant  girl  in 
his  family,  named  Catharine,  who  united  with  Hill  in  the 
deed  and  mortgage  already  referred  to,  as  his  wife.  She 
further  states  that  the  property  in  dispute  was  her  sepa- 
rate property,  purchased  and  paid  for  partly  by  money 
•which  she  had  at  the  time  of  her  marriage,  and  partly  by 
the  accumulations  of  her  industry  while  the  wife  of  Hill  ; 
that  the  deed  for  the  property  was  originally  executed  to 
her  in  her  mime,  but  that  the  title  was  obtained  from  her 
during  a  period  of  severe  illness,  and  a  new  deed  taken 
from  the  original  grantor  in  the  name  of  her  husband; 
that  the  deed  was  made  to  her  husband  because  it  was 
expected  that  she  would  then  die,  and  that  on  her  re- 
covery her  husband  promised  to  re-convey  it ;  that  but 
$25  was  due  when  the  mortgage  was  given,  and  that  i» 


OCTOBER  TERM,  1860.  145 

Wilson  v.  Hill. 

the  only  amount  which  in  equity  can  be  recovered  upon  it. 
This  answer  raises  a  number  of  important  issues,  both  of 
law  and  of  fact.  The  first  and  most  important  of  these  ques- 
tions, which  lies  at  the  foundation  of  the  whole  inquiry,  is, 
was  the  defendant  Frances  the  wife  of  Josiah  Hill,  as  alleged 
in  the  answer? 

The  fact  of  the  marriage  is  not  proved,  either  by  record 
or  by  the  testimony  of  any  witness  present  at  the  ceremony. 
But  it  is  proved  by  numerous  and  unimpeached  witnesses, 
that  the  parties  lived  together,  cohabiting  as  and  reputed  to 
be  man  and  wife,  for  many  years  previous  to  the  date  of  this 
transaction ;  that  during  such  cohabitation  she  had  two 
children,  which  were  recognized  by  the  husband  as  his;  that 
in  the  year  1847,  while  Hill  and  Frances  were  so  living 
together,  a  deed  was  executed  to  her  for  a  tract  of  land  in 
the  county  of  Somerset,  upon  which  they  subsequently  re- 
sided. That  deed  contains  the  following  clause:  "Which 
said  tract  or  parcel  of  laud  is  conveyed  to  the  said  Frances 
Hill,  wife  of  Josiah,  and  to  her  heirs  and  assigns  forever,  the 
farm  having  been  purchased  by  her  with  her  own  separate 
funds." 

Hill  subsequently  united  in  the  conveyance  of  this  pro- 
perty with  Frances  as  his  wife,  representing  it  as  Mrs.  Hill's 
property.  He  joined  with  her  as  his  wife  repeatedly  in  the 
conveyance  of  property,  the  title  to  which  was  in  himself. 
He  united  with  her  as  his  wife  in  the  acknowledgment  of 
these  instruments.  The  cohabitation  between  the  parties  and 
their  repeated  formal  recognitions  of  the  marital  relation  con- 
tinued till  nearly  the  date  of  the  mortgage  in  controversy. 
This  furnishes  competent  and  plenary  evidence  of  the  fact  of 
the  marriage. 

But  it  is  urged  that'  this  evidence  is  met  and  overcome  by 
counter  testimony,  viz.,  her  own  oath  to  the  contrary  and 
her  acceptance  of  the  deed  from  Hill  and  Catharine,  his 
wife. 

These  instruments,  as  well  the  bond  and  mortgage  of 
the  complainant  as  the  deed  to  Frances  Hill,  the  defend- 


146  CASES  IN  CHANCERY. 

Wilson  v.  Hill. 

ant,  by  the  name  of  Frances  Watts,  were  cetera  porane- 
ously  executed  while  the  parties  were  all  in  confinement 
in  the  common  jail  of  the  county  of  Hudson.  Hill  was 
in  confinement  on  a  charge  of  bigamy  for  marrying  Catha- 
rine, his  pretended  wife.  Frances,  the  first  wife,  was 
brought  by  compulsory  process  before  the  grand  jury  to 
testify  against  her  husband,  and  was  sworn  to  testify  upon 
that  charge.  According  to  the  testimony  of  one  of  the 
grand  jurers,  being  so  sworn,  she  testified  that  she  was 
never  married  to  Hill;  that  she  was  not  his  wife;  that 
the  connection  between  them  was  a  partnership.  On  that 
occasion  she  passed  by  and  answered  to  the  name  of 
Frances  Watts.  The  complaint,  the  juror  adds,  was 
unanimously  dismissed  upon  her  testimony  solely. 

Waiving  all  discussion  of  the  long-agitated  question 
whether  a  grand  juror  should  ever  be  permitted,  upon  a 
mere  question  of  property,  to  violate  privileged  commu- 
nications by  disclosing  the  secrets  of  the  grand  jury  room  ; 
assuming  for  the  present,  what  I  do  not  admit,  that  such 
evidence  may  be  lawful,  I  think  it  clear  that  the  evidence 
here  offered  is  not  admissible,  and  if  admissible  it  is  en- 
titled to  no  weight  whatever. 

The  change  of  deeds  vested  neither  the  legal  nor  the 
equitable  title  in  the  husband.  He  had  neither  when  the 
mortgage  in  question  was  executed. 

So  the  title  remained  until  December,  1856,  when  the 
husband  was  arrested  and  imprisoned  on  a  charge  of 
bigamy  for  marrying  Catharine,  a  second  wife,  while  his 
wife  Frances  was  living.  While  the  husband  and  both 
the  females  were  in  jail,  a  creditor,  having  a  charge  of 
$25  against  Hill,  desired  the  counsel  of  Hill  to  have  it 
in  some  way  secured.  The  scrivener  and  counsel  of  Hill 
thereupon  visited  the  jail.  A  bargain,  it  is  alleged,  was 
made  between  the  husband  and  wife  to  divide  the  pro- 
perty. The  husband  and  his  mistress  first  executed  a 
mortgage  upon  the  wife's  property  to  the  creditor  for 
$1500,  to  secure  $25,  and  then  humanely  conveyed  the 


OCTOBER  TERM,  1860.  147 


Wilson  v.  Hill. 


wife's  land  to  her,  subject  to  that  mortgage.  The  wife  is 
thereupon  dragged  illegally  before  the  grand  jury,  and  swears 
that  she  was  never  married.  The  bill  of  indictment  is  ig- 
nored, and  the  husband  discharged. 

It  would  prove  an  interesting  and  instructive,  though 
perhaps  painful  task,  to  enter  that  prison,  to  lift  the 
curtain  that  conceals  this  transaction,  and  to  disclose  the 
means  and  influences  that  were  used  to  bring  about  this 
result. 

The  wife  was  most  unlawfully  and  improperly  brought 
before  the  grand  jury,  and  compelled  to  testify  upon  a 
criminal  charge  against  her  husband.  There  is  no  clearer 
principle  of  law  than  that  a  wife  will  not  be  permitted  to 
testify  against  her  husband  on  a  charge  of  bigamy,  even  by 
the  husband's  consent.  2  Star  kiefs  Ev.  399;  Gregg's  case, 
Sir  T.  Raymond  I ;  Roscoe's  Cr.  Ev.  114. 

She  is  not  permitted  to  testify  for  or  against  him — not 
for  him,  on  account  of  the  strong  influence  and  temptation 
she  is  under  to  pervert  the  truth  in  his  favor;  nor  against 
him,  from  fear  of  creating  dissension.  The  evidence  is  ex- 
cluded, and,  in  my  judgment,  most  wisely  excluded,  upon 
principles  of  public  policy. 

No  bill  of  indictment  could  lawfully  have  been  found 
upon  her  testimony,  nor  if  found,  would  she  have  been 
admitted  as  a  witness.  The  bill  was  dismissed,  not,  as  the 
grand  juror  supposes,  upon  her  evidence,  but  simply  be- 
cause the  state  failed  to  prove  what  they  were  bound  to 
prove  affirmatively  by  competent  evidence,  to  wit,  the  hus- 
band's marriage.  The  evidence  is  incompetent  for  or  against 
the  husband,  and  equally  incompetent  to  affect  favorably  or 
unfavorably  the  rights  of  property  of  the  wife.  It  cannot  be 
that  evidence  thus  unlawfully  extorted  from  the  wife  for  an 
unlawful  purpose  can  be  used  to  strip  her  of  her  rights  of 
property. 

But,  if  the  evidence  could  even  be  supported  as  compe- 
tent, it  should  be  disregarded  as  of  no  weight.  She  was 


148  CASES  IN  CHANCERY. 

Wilson  v.  Hill. 

called  to  consign  her  husband  to  infamy  and  imprison- 
ment. The  first  prompting  of  her  heart,  if  stung  by 
jealousy  and  incited  by  resentment,  would  be  to  sacrifice 
him  to  her  passions ;  or,  if  she  testified  under  the  resistless 
incentive  of  a  woman's  love,  it  would  be  to  sacrifice  herself 
for  his  sake. 

The  fact  that  a  deed  was  executed  to  her  which  appears 
never  to  have  been  in  her  possession,  is  of  no  weight. 
We  must  regard  the  fact  as  established  for  all  the  pur- 
poses of  this  cause,  that,  at  the  date  of  these  papers,  the 
defendant  Frances  was  the  lawful  wife  of  Josiah  Hill,  the 
complainant. 

As  a  consequence,  it  results  that  the  alleged  contract  made 
between  them,  in  the  jail  or  elsewhere,  in  regard  to  her  prop- 
erty, was  null  and  void  as  against  her. 

As  another  consequence  of  this  fact,  she  is  clearly  entitled 
to  her  rights  in  the  mortgaged  premises  as  dowress  unaf- 
fected by  this  mortgage. 

But  she  does  not  rest  her  rights  upon  this  ground.  She 
claims  the  property  as  her  own,  and  insists  that  this  mortgage 
is  fraudulent,  null,  and  void.  Let  us  see  how  far  the  evi- 
dence sustains  her  answer  upon  this  point.  On  the  27th  of 
April,  1853,  the  mortgaged  premises  were  conveyed  by 
Bernart  Heatley  ami  wife,  by  deed  duly  executed  and  ac- 
knowledged, to  Frances  Hill,  the  wife  of  Josiah  Hill.  It  was 
so  stated  in  the  deed.  The  deed  contained  the  usual  cove- 
nants of  seizin,  for  quiet  enjoyment,  against  encumbrances  and 
of  general  warranty  in  favor  of  the  wife.  That  deed  was 
raade  upon  an  exchange  of  property  between  the  parties.  la 
performance  of  the  exchange,  the  parties  entered  into  posses- 
sion— Heatley  of  the  property  at  Rockaway  conveyed  by  Hill 
and  wife  to  him,  Hill  and  wife  of  the  property  at  Jersey  City 
received  in  exchange.  The  deed  remained  in  possession  of 
the  scrivener,  who  .was  the  counsel  of  Hill,  till  the  month  of 
September.  Hill  then  called  upon  his  counsel,  stated  that 
his  wife  was  very  sick — not  expected  to  live — (they  then 


OCTOBER  TERM,  1860.  149 

Wilson  v.  Hill. 

lived  together  as  man  and  wife.)  She  had  a  bad  and 
unruly  boy,  and  did  not  want  him  to  have  the  property. 
He  wished  the  deed  to  h-is  wife  destroyed,  and  a  new 
deed  drawn  from  Heatley  to  himself.  The  counsel  de- 
clined, unless  by  the  wife's  consent.  He  said  she 
would  consent,  and  he  was  very  anxious  to  have  it 
closed  that  night.  At  Hill's  instance,  counsel  imme- 
diately drew  the  deed — went  lo  Hill's  house — found  the 
wife  in  bed  very  low,  not  expected  to  live;  and  on 
being  interrogated  by  counsel  in  the  presence  of  the 
husband,  she  consented  or  requested  that  the  deed  to  her- 
self should  be  destroyed,  and  a  new  deed  made  to  Hill. 
The  counsel  thereupon  took  the  cars  for  Rockaway,  roused 
Heatley 's  family  from  bed,  surrendered  the  deed  pre- 
viously given  to  Mrs.  Hill,  had  a  new  deed  executed  to 
Josiah  Hill,  and  returned  the  same  night  to  Jersey  City. 
The  Heatleys  were  told  that  Mrs.  Hill  was  not  expected  to 
live,  and  that  she  requested  or  consented  to  the  change. 
The  deed,  though  executed  and  acknowledged  on  the  9th 
of  September,  was  antedated  to  correspond  with  the  date 
of  the  original  deed  to  Mrs.  Hill.  On  the  3d  of  October 
the  deed  was  placed  on  record,  and  thus,  without  a  private 
examination  or  an  acknowledgment  before  an  officer — with- 
out a  dollar's  consideration — the  property  of  a  wife,  in  the 
last  stage  of  debility  and  disease,  upon  a  consent  extracted 
at  the  husband's  instance  by  the  husband's  counsel  and 
in  the  husband's  presence,  is  attempted  to  be  transferred  to 
the  husband.  There  is  strong  reason,  from  the  evidence, 
to  believe  that  this  property  was  paid  for  by  the  wife,  and 
was  in  equity  her  sole  and  exclusive  property.  But  that 
is  totally  immaterial  ;  it  is  enough  to  know  that  the  title 
was  in  her,  and  the  presumption  is  that  it  was  hers  iti 
equity,  as  well  as  at  law,  till  the  contrary  is  proved. 

The  legal  title  to  these  premises  was  vested  in  Mrs. 
Hill  in  April,  1853.  The  title,  and  possession  under  it, 
had  been  in  her  for  six  months  at  the  time  of  the  execu- 


150  CASES  IN  CHANCERY. 

Wilson  v.  Hill. 

tion  of  the  new  deed.  Did  the  canceling  of  her  deed  de- 
stroy her  title  ? 

The  rule  of  the  common  law  is  perfectly  well  settled,  that 
the  cancellation  of  a  deed  by  consent  of  parties  will  not  di- 
vest the  grantee  and  re-vest  in  the  grantor  an  estate  which 
has  once  vested.  There  must  be  a  re-conveyance.  Leech  v. 
Leech,  2  Ohan.  Rep.  100;  Touchst.  70,  Roe  v.  Archbishop 
of  York  ;  6  East  86  ;  Harrison  v.  Owen,  1  Atk.  520 ;  Jack- 
son v.  Chase,  2  Johns.  R.  87  ;  Cheseman  v.  Whittemore,  23 
Pick.  231 ;  Raynor  v.  Wilson,  6  Hill  469;  Lewis  v.  Puyn, 
8  Cowen  75  ;  Holbrook  v.  Tirrell,  9  P/c&.  105 ;  Viner's  Ab., 
Fail's  x  2 ;  Miller  v.  Maynwaring,  Cro.  Car.  399. 

It  is  said,  by  the  witness,  that  the  mortgage  was  given  for 
the  husband's  benefit.  That  is  certainly  a  remarkable  trans- 
action. A  bargain  is  made  between  the  husband  and  wife 
to  divide  her  property  between  them.  A  mortgage  is  given 
by  the  husband  and  his  mistress  upon  his  wife's  property, 
in  consideration,  it  would  seem,  of  his  letting  his  wife  have 
the  residue  of  the  property,  and  perhaps  take  upon  herself 
the  guilt  of  rescuing  her  husband  from  an  impending  prose- 
cution. In  the  hands  of  the  original  mortgagee,  who  was 
acquainted  with  the  facts,  the  mortgage  is  worthless  as 
against  the  wife's  interest.  He  in  fact  disclaims  all  connec- 
tion'or  participation  in  the  matter.  The  paper  was  held  for 
months  in  the  hands  of  counsel  for  the  husband's  benefit. 

On  the  9th  of  June,  1854,  it  was  assigned  by  the  mort- 
gagee, at  the  instance  of  the  husband,  to  the  present  com- 
plainant, a  counselor-at-law  of  the  city  of  New  York.  He 
insists  that  he  is  a  bona  fide  holder  for  value;  that  he  pur- 
chased the  mortgage  of  the  husband  without  notice  of  the 
wife's  equity. 

The  legal  principle  is  admitted,  that  although  the  mort- 
gage was  illegal  and  void  in  the  hands  of  the  original  mort- 
gagee, either  for  himself  or  as  trustee  for  the  benefit  of  the 
husband,  both  having  full  notice  of  the  wife's  equity,  yet  a 
purchaser  without  notice  may  enforce  the  claim. 


OCTOBER  TERM,  1860.  151 

Updike  v.  Titus. 

But  I  do  not  think  the  complainant  can  stand  in  that  po- 
sition. He  had  been  the  counsel  of  Hill  before;  a  large 
amount  of  his  claim  is  for  fees;  he  knew  the  parties ;  he 
knew  that  Mrs.  Hill  had  her  property  in  trust ;  lie  knew  that 
this  mortgage  was  in  the  hands  of  a  third  party  in  trust  for 
the  husband.  He  was  bound  to  have  ascertained  the  nature 
and  character  of  the  trust.  There  was  enough  to  have  put 
him  on  inquiry.  If  lie  did  not  know,  he  was  bound  to  know 
what  the  real  character  of  the  transaction  was. 


UPDIKE  vs.  TITUS  and  others. 

1.  The  law  implies  no  promise  to  pay  for  services  rendered  by  members 
of  a  family  to  each  other,  whether  by  children,  parents  or  other  relatives. 

2.  The  rule  is  well  settled,  that  a  mere  moral  obligation  constitutes  no 
legal  consideration  for  a  contract. 

3.  A  widow  and  her  son  were  living  together;  the  former  performed 
certain  services,  such  as  washing  and  ironing,  &c.,  the  latter  contributed 
somewhat  to  the  support  of  the  family.     The  mother  lent  to  the  son,  from 
time  to  time,  small  sums  of  money.     The  son,  having  become  embarrassed, 
executed  a  mortgage  to  his  mother,  the  consideration  being  the  services 
»nd  the  loans  afoiesaid. 

4.  Held,  that  as  against  creditors,  the  loans  constituted  a  valid  consider- 
ation— cvntra  as  to  the  services. 


Edward  W.  Scudder,  for  complainant. 
Beasley,  for  defendants. 

THE  CHANCELLOR.  The  bill  is  filed  to  foreclose  a  mort- 
given  by  Charles  G.  Updike  to  hia  mother,  Eliza- 
beth Updike,  for  $ 1200.  The  execution  of  the  mortgage 
is  fully  proved,  but  its  validity  is  contested  by  a  judgment 
creditor  of  the  mortgagor,  and  the  purchaser  of  the  equity 
of  redemption  in  the  mortgaged  premises,  as  without 


152  CASES  IN  CHANCERY. 

Updike  v.  Titus. 

consideration,  fraudulent  and  void  as  against  creditors.  The 
consideration  of  the  mortgage,  as  shown  by  the  evidence  of 
the  mortgagee  and  mortgagor,  (both  of  whom  have  been  ex- 
amined,) was  money  lent  and  services  rendered  by  the  mort- 
gagee to  the  mortgagor. 

The  money  was  advanced  in  small  sums,  extending,  during 
a  period  of  several  years,  from  1847  till  1854.  The  services 
also  extended  through  a  period  of  over  eight  years,  and  con- 
sisted of  keeping  house,  washing,  ironing,  mending  and  other 
similar  domestic  labor. 

From  the  evidence,  it  appears  that  the  husband  of  the 
complainant  died  in  March,  1816,  leaving  a  small  property 
and  a  family  of  children,  of  whom  the  mortgagor  was  one. 
By  his  will,  he  left  two  houses  and  a  lot  of  ground  in  the 
city  of  Trenton,  with  the  bulk  of  his  personal  property, 
to  a  daughter  and  son-in-law,  and  in  consideration  thereof, 
directed  that  they  should  take  care  of  and  provide  for  his 
wife  Elizabeth  a  comfortable  home  and  living  while  she 
remained  his  widow.  Two  of  the  testator's  daughters 
were  also  to  have  a  home  in  the  house  while  they  re- 
mained single.  The  family  continued  to  occupy  the 
house  after  the  death  of  the  testator.  The  son-in-law,  to 
some  extent,  provided  for  the  family  until  1854,  when  he 
removed.  In  1855,  the  house  was  sold  under  execu- 
tion and  purchased  by  the  mortgagee,  part  of  the  family, 
with  the  mortgagor  and  his  mother,  still  continuing  in 
the  house.  The  mortgagee  continued  a  member  of  the 
family  from  the  time  of  his  father's  death,  when  he  was  of 
age,  till  the  date  of  the  mortgage,  with  the  exception  of  a 
year,  when  he  was  in  California.  No  account  had  been  kept 
of  these  loans  or  services — no  contract  had  been  entered  into 
for  their  performance,  and  no  promise  made  for  their  pay- 
ment. 

In  1857,  the  complainant,  being  largely  in  debt  and 
fearing  trouble  from  his  creditors,  proposed  to  execute 
the  mortgage  to  his  mother,  to  secure  her  claims  in  pref- 
erence to  those  of  other  creditors,  which  was  accordingly  done. 


OCTOBER  TERM,  1860.  153 

Updike  v.  Titus. 

So  far  as  relates  to  the  claim  for  services  rendered,  the 
mortgage  is  without  consideration,  and  fraudulent  as  against 
creditors.  The  law  implies  no  promise  to  pay  for  services 
rendered  by  members  of  a  family  to  each  other,  whether  by 
children,  parents,  grand -parents,  brother,  step-children,  or 
other  relations.  No  action  can  be  maintained  for  such  serv- 
ices, in  the  absence  of  an  express  contract  or  engagement  to 
pay  for  them.  The  rule  rests  upon  the  simple  reason  that 
such  services  are  not  performed  in  the  expectation,  'or  upon 
the  faith  of  receiving  pecuniary  compensation.  Ordinarily, 
for  a  service  rendered,  the  law  implies  a  promise  to  pay,  cor- 
responding with  the  value  of  the  service,  but  for  services 
rendered  by  members  of  a  family  to  each  other,  no  promise 
is  implied  for  remuneration,  because  they  were  not  performed 
in  the  expectation,  by  either  party,  that  pecuniary  compensa- 
tion would  be  made  or  demanded.  The  authorities  upon  this 
subject  are  numerous  and  decided,  and  the  principle  upon 
which  they  rest,  too  clear  for  doubt. 

The  services  rendered  in  such  cases  are  mutual,  and  it  may 
be  often  difficult  to  decide  upon  which  party  the  principal 
benefit  is  conferred.  In  this  case,  during  a  part  of  the 
period  for  which  these  services  are  claimed,  the  son  owned 
the  house  in  which  the  mother  lived,  and  not  only  fur- 
nished her  a  home,  but  made  the  principal  provision  for  the 
family. 

'  I  think  it  perfectly  manifest,  from  the  testimony  of  the 
complainant  herself,  that  no  remuneration  for  her  services 
was  contemplated,  when  they  were  rendered,  or  thought  of 
by  her,  until  the  son  proposed  to  give  her  the  mortgage. 
Compensation  would  neither  have  been  demanded  or 
tendered,  but  for  the  embarrassments  of  the  son.  There 
was,  clearly,  no  legal  liability  for  their  payment;  and  if  it 
should  be  admitted  that  the  son  was  morally  bound  to 
pay  for  the  service — which  is  by  no  means  clear — the  rule 
is  well  settled  that  a  moral  obligation  constitutes  no  legal 
consideration  for  a  contract.  The  rights  of  the  creditors, 


354  CASES  IN  CHANCERY. 

Barriclo  v.  Trenton  Mutual  Life  and  Fire  Insurance  Co. 

therefore,  are  not  altered  bv  the  voluntary  obligation  to  pay 
for  the  services.  As  to  them,  the  case  stands  as  if  no  mort- 
gage had  been  given.  C kitty  on  Con.  45,  and  cases  cited  in 
note;  Beaumont  v.  Reeve,  8  Queen's  Bench  483:  Hack  v, 
Stewart,  8  Barr  213;  Cook  v.  Bradley,  7  Conn.  57;  Mills 
v.  Wyman,  3  Pick.  207. 

The  claim  for  money  advanced,  rests  upon  a  somewhat 
different  ground.  Undoubtedly,  the  advance  of  money  by  a 
parent  to  a  child  may  be,  and,  perhaps,  usually  is  presumed 
to  be  a  gift,  and  not  a  loan.  Chitty  on  Contracts. 

But  that  presumption  is  by  no  means  conclusive,  and  is 
open  to  be  rebutted  by  the  situation  and  circumstances  of  the 
parties.  In  this  case,  I  think,  the  grounds  for  deeming  it  a 
loan,  are  quite  as  strong  as  those  for  holding  it  as  a  gift.  The 
mother  was  advanced  in  years,  infirm,  and  possessed  of  very 
small  means;  the  son  in  the  prime  of  life,  in  active  business, 
and  more  capable  of  taking  care  of  her  money  than  the 
mother.  It  was  natural,  under  the  circumstances,  for  her  to 
trust  him  with  her  funds,  though,  perhaps,  with  not  a  very 
firm  hope  of  re-payment.  The  son,  moreover,  swears  that 
the  advance  was  made  as  a  loan,  I  shall  so  regard  it.  This 
constitutes  a  good  consideration  for  the  mortgage,  though 
barred  by  the  statute  of  limitations  at  the  time  of  its  execu- 
tion. Beaumont  v.  Reeve,  8  Queen's  Bench  487,  per  Lord  Den~ 
•man  ;  Cook  v.  Bradley,  7  Conn.  57;  Chitty  on  Con.  45,  note  2, 

The  complainant  is  entitled  to  a  decree  for  the  amount  of 
money  advanced  to  the  son,  with  interest. 

CITE»  in  Prickett  v.  Prickell,  5  C.  E.  Or.  480 ;  Gardner  v.  Sehooley,  10 
C.  E.  Or.  154. 


;BARRICLO  vs.  THE  TRENTON  MUTUAL  LIFE  AND  FIRE 
INSURANCE  COISTPANY. 

1.  Matters  which  are  known  to  complainant  before  the  decree  in  the 
•  original  suit,  wilt  not  support  a  supplemental  bill,  nor  will  matters  which 
haye  arisen  ainee,  if  they  are  merely  cumulative  evidence  of  the  chiafgei 
in  the  original  bill. 


OCTOBER  TERM,  1860.  155 

Barriclo  v.  Trenton  Mutual  Life  and  Fire  Insurance  Co. 

2.  That  a  supplemental  bill  is  filed  without  authority  of  the  court  is  not 
matter  of  demurrer,  though  it  may  on  that  ground,  in  the  discretion  of  the 
court,  be  dismissed. 

3.  The  supplemental  bill  in  this  case  held  to  be  multifarious. 


William  Hahted,  for  complainant. 
Beasley,  for  defendants. 

THE  CHANCELLOR.  The  original  bill  in  this  cause  was 
filed  on  the  llth  of  May,  1852,  against  the  Trenton  Mu- 
tual Life  and  Fire  Insurance  Company.  The  only  parties 
defendants  to  the  bill  were  the  company,  its  president  and 
treasurer.  The  proceeding  was  instituted  under  the  act 
to  prevent  frauds  by  incorporated  companies.  The  bill 
was  filed  by  a  creditor  and  stockholder  of  the  company, 
and  prayed,  among  other  things,  that  the  company  might 
be  declared  insolvent,  that  they  might  be  restrained  by 
injunction  from  exercising  their  corporate  franchises,  and 
that  a  receiver  might  be  appointed  to  wind  up  its  con- 
cerns. Upon  an  application  for  ah  injunction,  at  May 
Term,  1852,  the  Chancellor  held  that,  upon  the  case  made 
by  the  pleadings  and  proofs,  the  insolvency  of  the  company 
was  not  established,  and  the  motion  for  an  injunction  was 
denied.  The  grounds  of  that  opinion  appear  iu  the  report 
of  the  case  in  1  Stockton  95. 

On  the  15th  of  July,  1852,  the  complainanis  filed  an 
amended  bill.  It  prayed  (1)  that  a  full  discovery  may  be 
made  of  the  business  transactions  and  property  of  the 
company,  including  its  guarantee  capital  ;  (2)  that  the 
creditors  may  be  paid  what  was  justly  due,  and  the  policy- 
holders  protected  in  their  just  rights ;  (3)  that  the  com- 
pany ami  its  officers  may  be  enjoined  from  collecting  the 
debts  or  exercising  the  franchises  of  the  corporation  ;  (4) 
that  a  receiver  may  be  appointed,  and  that  the  property 
and  funds  of  the  company  may  be  brought  into  court,  and 
disposed  of  under  the  order  of  the  court ;  (5)  and  that  the 
books  of  the  company  may  be  brought  into  court  for  in- 


J56  CASES  IN  CHANCERY. 

Barriclo  v.  Trenton  Mutual  Life  and  Fire  Insurance  Co. 

epection  and  examination  in  proof  of  the  charges  of  the 
bill. 

At  May  Term,  on  the  18th  of  July,  1853,  the  cause 
having  been  brought  to  hearing  upon  the  pleadings  and 
proofs,  the  Chancellor  declared  his  opinion  that  the  com- 
pany was  insolvent,  but  declined  to  appoint  a  receiver. 
The  management  was  left  in  the  hands  of  the  directors 
of  the  company,  who  were  required,  in  closing  its  affairs, 
to  act  under  the  immediate  control  and  direction  of  the 
court.  The  same  duties  were  imposed  upon  them  as  are 
required  of  receivers  under  the  llth  section  of  the  act  re- 
ferred to.  See  1  Stockton  347. 

By  a  decretal  order,  made  on  the  18th  of  June,  1853, 
the  company  was  declared  insolvent  under  the  provisions 
of  the  statute,  and  were  required  to  make  and  exhibit  to 
the  court  an  inventory  of  all  their  property  and  of  the  debts 
due  to  and  from  the  company,  and  to  make  report  of 
their  proceedings  to  the  court  every  six  months  thereafter. 

The  supplemental  bill,  after  reciting  the  charges  and 
prayer  of  the  amended  bill,  gives,  by  way  of  supplement, 
a  detailed  history  of  various  steps  in  the  progress  of  the 
cause  since  the  18th  of  July,  1853.  It  exhibits  statements, 
made  from  time  to  time,  by  the  directors,  of  the  affairs  of 
the  company.  It  gives  a  detailed  statement,  from  the 
report  of  the  directors,  of  the  amount  of  the  guarantee 
capital,  of  the  persons  by  whom  it  is  held,  and  the  amounts 
held  by  them  respectively,  of  the  amounts  of  interest  paid 
thereon,  of  the  securities  given  for  this  capital,  and  of  the 
withdrawal  of  certain  securities,  and  the  substitution  of 
others,  from  time  to  time  made  in  lieu  thereof.  It  states 
that  admitted  claims  against  the  company  had  been  pur- 
chased up  by  the  directors  and  others  associated  with 
them  as  joint  purchasers  of  such  claims,  and  that,  under 
a  report  of  one  of  the  masters  of  the  court,  it  was  held  by 
the  roaster  that  such  claims  should  be  held  only  for  the 
amount  paid  therefor,  and  that,  in  the  distribution  of  the 
assets  of  the  company,  they  should  have  only  a  pro  raid 
dividend  on  such  amount. 


OCTOBER  TEUM,  1860.  157 

Barriclo  v.  Trenton  Mutual  Life  and  Fire  Insurance  Co. 

Various  charges  of  fraudulent  conduct  are  made  against 
tlie  directors,  and  it  is  alleged,  in  general  terms,  that  facts 
which  have  come  to  light,  and  information  received  since  the 
filing  of  the  original  bill,  make  it  apparent  that  the  company 
was  insolvent  prior  to  the  filing  of  the  original  bill,  and  that 
the  fact  was  known  to  the  directors. 

It  charges  that  a  part  of  the  guarantee"  capital  had  been 
illegally  assigned  by  the  directors  to  themselves  and  others, 
and  insists  that  the  directors  and  others  by  whom  such  guar- 
antee capital  was  deposited  should  be  estopped  from  denying 
that  it  constitutes  a  part  of  the  assets  of  the  company  for  the 
payment  of  losses.  It  insists  that  the  contributors  to  the 
guarantee  capital  ought  to  be  personally  charged  with  the 
amount  of  such  guaranty,  even  if  a  recovery  upon  the  se- 
curity itself  is  barred. 

The  bill  prays  (1)  that  the  company  may  be  enjoined 
from  collecting  any  of  its  debts,  or  from  exercising  any  of 
its  franchises ;  (2)  that  a  receiver  may  be  appointed  to 
collect  and  take  into  possession  all  the  debts  and  property 
belonging  to  the  corporation  at  the  time  of  their  suspend- 
ing business;  (3)  that  the  directors  of  the  company,  by 
whose  authority  or  consent  the  securities  deposited  with 
the  treasurer  of  the  company  as  guarantee  capital  were 
given  up,  be  decreed  to  replace  the  same,  or  to  be  per- 
sonally liable  for  the  amounts  so  withdrawn,  and  that  the 
other  defendants  may  be  decreed  to  replace  the  securities 
by  them  withdrawn  from  the  hands  of  the  treasurer  of 
the  company  under  authority  or  pretence  of  a  resolutiou 
passed  at  a  meeting  of  the  company  in  April,  1851,  or 
may  be  decreed  to  be  personally  liable  for  the  amount 
thereof  by  them  respectively  received,  with  interest,  and 
that  they  may  be  decreed  to  repay  to  the  company  the 
amounts  respectively  received  by  them  as  interest  upon 
such  guarantee  capital ;  that  the  guarantee  capital  may 
be  dec-reed  to  be  assets,  and  liable  to  be  assessed  for  its 
pro  raid  share  of  the  debts  and  losses  of  the  company,  and 
that  the  bonds  and  securities  substituted  by  order  of  the 

VOL.  ii.  K 


158  CASES   IN  CHANCERY. 

Barriclo  v.  Trenton  Mutual  Life  and  Fire  Insurance  Co. 

Chancellor,  in  lieu  of  the  securities  originally  given  as  a  cap- 
ital, be  in  like  manner  appropriated  and  distributed  under 
the  decree  of  the  court. 

The  bill  is  essentially  vicious,  both  in  its  frame  and  de- 
sign. It  is  in  no  sense  a  supplemental  bill  nor  a  bill  in 
the  nature  of  a  supplemental  bill.  It  is  not  in  aid  of  the 
original  bill.  It  seeks  a  different  object;  it  introduces 
new  parties ;  it  reports  new  facts,  charges,  and  specifica- 
tions having  no  connection  with  the  purpose  of  the  origi- 
nal bill. 

The  design  of  the  original  bill  was  to  have  the  insurance 
company  declared  insolvent,  a  receiver  appointed,  and  its 
affairs  wound  up  under  the  direction  of  the  court.  Relief 
was  sought  against  the  corporation  alone,  at  the  hands  of  its 
creditors. 

The  sole  design  of  the  present  bill  is  to  establish  the 
claims  of  the  corporation  against  persons  alleged  to  be  its 
debtors,  or  against  its  officers  who  have  made  themselves 
liable  by  their  fraudulent  conduct.  Its  sole  design  is  to 
have  the  guarantee  capital  declared  to  be  assets  for  the 
payment  of  the  debts  of  the  company ;  to  have  the  di- 
rectors who  parted  with  the  securities  constituting  such 
guarantee  capital,  and  the  parties  who  received  them  from 
the  treasurer  liable  therefor,  and  also  liable  for  such  in- 
terest as  they  may  have  respectively  received  upon  such 
guarantee  capital  when  in  the  hands  of  the  treasurer.  I 
say  this  is  the  sole  design  of  the  supplemental  bill,  for  it  is 
manifest  that  the  prayer  for  an  injunction  and  receiver  has 
been  or  may  be  fully  attained  under  the  original  bill,  with- 
out the  least  reference  to  the  supplemental  matter. 

In  this  light  the  bill  is  in  no  sense  supplemental,  but  is  a 
new  bill  for  a  new  purpose  against  new  parties ;  or,  if  the 
bill,  by  reason  of  its  formal  prayer,  may  be  deemed  to  include 
as  well  the  purpose  of  the  original  bill  as  the  additional 
purpose  of  securing  the  guarantee  capital  and  interest  thereon, 
the  bill  is  bad  for  multifariousness. 

It  is. a  manifest  attempt  to  unite  with  a  bill  by  a  credit- 


OCTOBER  TERM,  1860.  159 

Barriclo  v.  Trenton  Mutual  Life  and  Fire  Insurance  Co. 

or  of  an  insolvent  company  for  the  settlement  of  its  affairs 
under  the  provisions  of  the  statute  the  settlement  of  disputed 
claims  between  the  company  and  its  officers,  members  and 
debtors.  Such  discordant  and  dissimilar  claims  cannot  be 
united  in  one  suit. 

The  matters,  moreover,  which  are  introduced  into  the 
bill  as  supplemental  are  and  were  known  to  the  complain- 
ant before  the  making  of  the  decree  in  the  original  cause, 
or  if  they  have  arisen  since,  they  are  merely  cumulative 
evidence  in  support  of  charges  in  the  original  bill,  neither 
of  which  constitutes  proper  matter  of  a  supplemental  bill. 
Story's  Eq.  PI.,  §  328,  §  332,  §  337  ;  Mitford's  PL,  by  Jeremy, 
61. 

There  are  other  matters  in  the  bill  which  render  it  demur- 
rable,  but  it  is  unnecessary  to  advert  to  them. 

The  objection  that  the  bill  was  filed  without  the  authority 
of  the  court  is  not  matter  of  demurrer,  though  the  bill  upon 
that  ground  may,  in  the  discretion  of  the  court,  be  dismissed. 
Eager  v.  Price,  2  Paige  333  j  1  Ho/man's  Ofi.  Prac.  403  ; 
Pedriek  v.  White,  1  Metcalf  76. 

The  demurrer  is  sustained,  and  the  bill  dismissed. 

I  have  arrived  at  this  conclusion  with  the  less  reluct- 
ance, because  it  is  obvious  that  no  possible  advantage  can 
accrue  to  the  creditor  from  prosecuting  the  claim  under 
this  bill.  Every  possible  advantage  within  the  legitimate 
scope  of  the  original  bill  can  be  more  readily  attained 
without  the  aid  of  the  supplement.  Every  other  object 
sought  by  the  supplement  can  be  more  readily  attained 
in  another  mode.  This  suit  has  already  been  pending  nine 
years,  and  but  little  progress  has  been  made  towards  the  sat- 
isfactory adjustment  of  the  rights  of  the  creditors.  This  new 
bill,  in  the  shape  in  which  it  is  presented,  would  be  the  sig- 
nal for  more  protracted  controversy. 

It  is  but  just  to  all  the  parties  that  this  controversy 
should  be  promptly  closed,  and  I  am  disposed  to  afford 
all  the  aid  in  the  power  of  the  court  to  promote  that  end. 
The  main  question  attempted  to  be  raised  by  this  bill,  to 


160  CASES  IN  CHANCERY. 

Barriclo  v.  Trenton  Mutual  Life  and  Fire  Insurance  Co. 

wit,  the  validity  of  the  guarantee  capital  in  the  hands  of 
the  company,  has  already  been  decided  in  this  court.  la 
The  Trenton  Mutual  Life  and  Fire  Insurance  Co.  v.  McKel- 
way  and  others,  1  Beasley  133,  the  iate  Chancellor,  in  an 
elaborate  opinion,  pronounced  the  contract  upon  which 
the  securities  were  advanced  to  constitute  the  guarantee 
capital  against  public  policy,  illegal  and  void.  That  suit 
was  instituted  for  the  foreclosure  of  one  of  the  mortgages 
given  as  a  part  of  the  guaranty.  I  must  assume,  as  the 
directors  were  acting  as  receivers  under  the  authority  of 
the  court,  that  the  suit  was  instituted  under  the  sanction 
of  the  Chancellor  for  the  express  purpose  of  testing  the 
question.  In  this  view  I  should,  sitting  here,  feel  myself 
bound  by  it,  and  so  far  as  this  case  is  concerned,  that 
question  should  be  considered  as  at  rest.  The  bill,  how- 
ever, was  dismissed  without  prejudice  to  the  claim  of  the 
complainants  for  interest  advanced  to  McKelway  upon  the 
contract. 

By  an  order  in  the  cause,  made  on  the  3d  of  December, 
1858,  the  Chancellor,  while  denying  an  application  for  an 
attachment  against  the  contributors  to  the  guarantee  capi- 
tal for  not  paying  the  interest,  gave  leave  to  counsel  to 
institute  such  suit  as  be  might  be  advised  against  the 
contributors  to  recover  the  interest.  That  question  is 
therefore  an  open  one,  which  should  be  at  once  disposed 
of.  It  was  intimated,  upon  the  argument,  that  the  de- 
cision upon  the  validity  of  the  guarantee  capital  in  the 
suit  against  McKelway  was  not  satisfactory,  and  that 
counsel  desired  the  question  to  be  reviewed.  If  so,  it 
should  be  done  not  in  this  court,  but  in  the  Court  of  Ap- 
peals. No  appeal  was  taken  from  the  decree  in  favor  of 
McKelway. 

If  the  directors  fail  to  take  prompt  steps  to  have  the 
question  regarding  the  claim  for  interest  and  any  other 
question  in  the  way  of  a  settlement  finally  adjudicated,  I 
will  entertain  an  application  for  the  appointment  of  a  re- 
ceiver. 


OCTOBER  TERM,  1860.  161 


Hunt  v.  Hunt. 


If  the  securities  advanced  as  the  guarantee  capital  belong 
to  the  company,  they  should  be  collected  and  applied  to  the 
payment  of  its  policies.  If  the  contract  is  void,  as  has  been 
decided  by  the  Chancellor,  the  securities  should  be  returned 
to  their  owners,  and  not  kept  locked  in  the  vaults  of  this 
court. 

The  interest  of  all  parties  demands  a  prompt  adjustment  of 
this  controversy. 


RICHARD  HUNT,  a  lunatic,  and   SAMUEL  J      -^ ,    ,  ^ 

guardian,  vs.  THOMAS  P.  HUNT. 

1.  An  inquisition  of  lunacy  is  not  conclusive  evidence  on  the  question 
of  incapacity. 

2.  The  evidence  in  this  case  held  to  establish  the  fact  that  the  grantee 
was  incapable,  from  mental  incapacity,  to  make  the  deed  in  question. 

3.  Held,  also,  that  the  conveyance  would  have  been  set  aside  on  the  fur- 
ther ground  of  undue  influence,  exercised  by  the  grantee  and  his  family 
over  the  grantor,  a  man  of  weak  mind,  the  consideration  of  the  deed  also 
Wing  inadequate. 

McCarter,  for  complainant. 
Linn,  for  defendant. 

THE  CHANCELLOR.  This  bill  is  filed  to  set  aside  a  deed 
made  by  Richard  Hunt,  now  a  lunatic  under  guardianship,  to 
his  brother,  Thomas  P.  Hunt,  the  defendant.  The  only  ques- 
tion before  the  court  is  whether,  at  the  time  of  the  execution 
of  the  deed,  the  defendant  was  so  far  deprived  of  his  reason 
as  to  be  incapable  of  contracting. 

The  evidence  in  the  case,  which  is  exceedingly  volumi- 
nous, satisfactorily  establishes  the  following  facts:  The 
land  in  question,  in  the  year  1822,  was  assigned  by  com- 
missioners on  partition,  to  Richard  Hunt,  as  a  part  of  his 
father's  estate.  He  was  theii  of  full  age.  In  that  year,  he 


162  CASES  IN  CHANCERY. 

Hunt  v.  Hunt. 

was  taken  to  the  lunatic  asylum  at  Bloomingdale,  where  he 
remained  under  treatment  as  a  lunatic,  for  some  months,  and 
was  then  discharged,  and  returned  home  in  company  with  hia 
brother,  but  not  restored  to  his  right  mind.  The  answer 
admits  that  for  seven  years  after,  he  continued  insane,  though 
with  lucid  intervals.  From  that  time,  he  has  virtually  been 
under  the  charge  and  care  of  his  brothers ;  his  land  has  been 
rented  by  them,  without  his  consent,  and  at  times,  as  the  evi- 
dence shows,  against  his  will.  He  has  taken  no  intelligent 
interest  in  or  control  over  it;  he  has  never  been  assessed  or 
paid  taxes  for  his  land,  or  had  the  control  or  management  of 
it  ;  he  has  been  regarded  and  treated,  by  his  own  family  and  by 
others,  as  of  unsound  mind  ;  he  has  never  attended  an  elec- 
tion or  voted ;  he  has  never  been  to  church,  or  to  ordinary 
places  of  public  resort  and  assemblage;  he  has  never  attended 
the  funeral  of  a  brother  or  sister,  or  other  near  relative;  he 
has  threatened  his  mother  with  personal  violence,  and  has 
heaped  upon  her  the  most  opprobrious  epithets ;  he  has 
uttered  the  most  senseless  and  shocking  blasphemies;  he 
has  treated  female  members  of  his  family  with  indecency 
and  insult;  he  has,  on  a  great  variety  of  occasions,  by  his 
language  and  his  conduct,  shown  that  he  was  laboring 
under  great  mental  delusion  ;  at  other  times,  under  extreme 
mental  excitement,  without  any  provoning  or  adequate 
cause. 

In  1858,  a  commission  of  lunacy  issued  out  of  this 
court,  at  the  instance  of  his  relatives.  An  inquisition 
was  taken  on  the  fifth  of  March,  of  that  year,  by  which  it 
was  found,  upon  the  unanimous  concurrence  of  fifteen 
jurors,  his  neighbors  and  acquaintances,  that  at  the  time 
of  taking  the  inquisition,  the  said  Richard  Hunt  was  a 
lunatic  of  unsound  mind,  not  capable  of  the  government 
of  himself,  his  land  or  lands,  and  that  he  had  been  in  the 
same  state  of  lunacy  for  the  space  of  thirty  years  and  up- 
wards. That  inquisition  has  not  been  traversed,  and,  upon 
its  finding,  Richard  Hunt  is  now  under  guardianship  as  a 
lunatic. 


OCTOBER  TERM,  1860.  1G3 


Hunt  v.  Hunt. 


The  evidence  of  the  inquisition  is  by  no  means  conclusive 
of  the  question  of  incapacity.  Sergeson  v.  Sealey,  2  Atk.,  § 
412  ;  Stock,  on  Lunacy  27;  Whiteknack  v.  Stryker,  1  Green's 
Ch.  E.  6. 

But,  under  the  circumstances  of  this  case,  it  is  entitled  to 
very  respectful  consideration. 

It  would  be  unprofitable  to  discuss  the  evidence.  I  have 
adverted  only  to  some  of  its  more  prominent  points,  omit- 
ting many  facts  of  equal  or  greater  significance.  There  is 
nothing,  in  my  judgment,  in  the  evidence  on  the  part  of  the 
defendant,  to  overcome  or  materially  to  weaken  the  case 
made  on  the  part  of  the  complainant.  The  evidence  satis- 
factorily shows  that,  at  the  time  of  the  conveyance  from 
Richard  Hunt  to  the  defendant,  he  was  incompetent,  by  rea- 
son of  mental  incapacity,  to  make  a  binding  contract  for 
the  conveyance  of  his  land,  and  on  that  account  the  deed 
should  be  set  aside. 

The  case  is  too  free  from  doubt  to  render  the  interven- 
tion of  a  jury  necessary  or  expedient.  There  is  another 
ground  which  renders  a  reference  to  a  jury  undesirable. 
If  the  case,  upon  the  ground  already  stated,  admitted  in 
my  mind  of  any  doubt,  I  should,  nevertheless,  feel  con- 
strained to  set  aside  this  deed  upon  another  ground 
established  by  the  evidence,  viz.,  for  the  reason  that  the 
grantor  was  of  weak  mind  ;  that  at  the  time  of  the  con- 
veyance, and  for  a  long  time  previous,  he  was  a  member 
of  the  family  of  the  brother  to  whom  the  conveyance  was 
made — an  inmate  of  his  family — dependent  upon  him  for 
his  daily  comforts,  to  some  extent  under  his  control,  and 
in  a  situation  to  be  influenced  and  controlled  by  him  ;  that 
the  evidence  shows  that  undue  influences  by  the  grantee, 
or  by  members  of  his  family,  were  used  to  operate  upon  the 
hopes  and  fears  of  the  grantor ;  that  the  circumstances 
attending  the  execution  of  the  contract  were  such  as  to 
justify  the  belief  that  it  was  not  understandingly  made, 
and  that  it  was  made  upon  a  very  inadequate  considera- 
tion. 


164  CASES  IN  CHANCERY. 

Smith  v.  Smith. 

'  If,  therefore,  I  have  entirely  misapprehended  the  force 
and  conclusiveness  of  the  evidence  upon  the  tirst  ground, 
the  complainant  would,  nevertheless,  be  entitled  to  relief  in 
equity  against  the  contract. 

The  complainant  is  entitled  to  relief.  But  the  deed  will 
be  set  aside  upon  equitable  terms.  All  the  moneys  advanced 
by  the  defendant,  as  a  consideration  for  the  conveyance, 
must  be  refunded,  and  all  debts  justly  due  from  the  grantee 
to  the  defendant,  which  were  discharged  or  released  as  a  part 
consideration,  must  be  paid,  and  the  obligation  entered  into 
by  the  grantee,  canceled  and  given  up.  There  must  be  a 
reference  to  a  master  to  take  an  account. 


WILLIAM  SMITH  vs.  SHADRACH  SMITH  and  others. 

1.  The  testator  directed  his  real  and  personal  estate  to  be  divided  into 
fourteen  equal  parts,  and  devised  and  bequeathed  one-fourteenth  part  to 
his  son  James,  disposing  of  the  residue  among  his  other  children.     By  a 
subsequent  clause  in  his  will,  the  testator  ordered  that,  from  the  value  of 
the  estate  devised  and  bequeathed  to  his  children,  his  executors  should 
deduct,  respectively,  the  amount  of  "  money  heretofore   paid   and   ad- 
vanced to  or  for  either  of  my  said  children,  or  to  either  of  the  husbands 
of  my  said  daughters,  and  all  other  moneys  and  accounts  in  which  they 
may  be  severally  indebted  to  me  at  the  time  of  my  decease." 

2.  At  the  time  of  testator's  death  James  was  indebted  to  him. 

3.  James'  share  in  the  land  devised  under  the  will  was  claimed  by 
virtue  of  an  assignment  which  he  had  made,  and  also  by  force  of  a  sher- 
iff's sale  under  a  judgment. 

4.  Held,  that  the  claim  of  the  executors  to  deduct  the  debts  due  the 
estate  from  James'  share  of  the  proceeds  of  lands  sold  under  proceedings 
in  partition,  was  paramount  to  the  rights  acquired  by  the  assignment  or 
the  sheriff's  sale. 

Hamilton,  for  the  applicant. 
Linn,  for  the  heirs. 


OCTOBER  TERM,  1860.  165 


Smith  v.  Smith. 


THE  CHANCELLOR.  Upon  a  bill  for  partition  among 
the  devisees  of  Nathan  Smith,  late  of  the  county  of  Sussex, 
deceased,  the  land,  not  being  susceptible  of  partition,  was 
sold,  in  order  that  the  proceeds  might  be  divided  under 
the  direction  of  the  court.  The  share  of  James  Smith, 
one  of  the  devisees,  is  claimed  by  William  Smith,  by 
virtue  of  an  assignment  to  him  from  James,  and  an  order 
in  his  favor  for  the  payment  of  the  money.  He  also  claims 
under  a  sale  and  conveyance  by  virtue  of  a  judgment  and 
execution  against  James,  made  by  the  sheriff  of  the  county 
of  Sussex  prior  to  the  master's  sale  under  the  proceedings  in 
partition.  This  claim  is  resisted  on  behalf  of  the  other  de- 
visees under  the  will. 

The  interest  of  James  Smith  in  the  land  and  in  the  pro-- 
ceeds  of  the  sale,  whatever  it  may  be  by  virtue  of  the  sher- 
iff's deed  and  of  the  assignment,  is  vested  in  William.  The 
only  question  is,  what  estate,  if  any,  in  the  land,  had  James 
under  the  will  of  his  father  ? 

The  testator  directed  his  real  and  personal  estate  to  be 
divided  into  fourteen  equal  parts.  He  devised  and  be- 
queathed to  his  executors  five  equal  fourteenth  parts  in  trust 
for  five  of  his  children,  and  one  equal  fourteenth  part  to  each 
of  his  other  children,  including  James. 

By  a  subsequent  clause  in  the  will,  the  testator  ordered 
and  directed  as  follows,  viz. :  "  It  is  my  will,  and  I  hereby 
order  and  direct  that,  from  the  value  of  the  share  of  my 
said  estate  devised  and  bequeathed  in  trust  for  my  five 
children  first  above  named,  and  also  from  the  value  of 
each  of  the  shares  of  my  said  estate  herein  devised  and 
bequeathed  to  my  other  children,  my  said  executors  deduct, 
respectively,  the  amount  of  money  which  I  have  heretofore 
paid  and  advanced,  or  may  hereafter  pay  and  advance  to  or 
for  either  of  my  said  children,  or  to  either  of  the  husbands 
of  my  said  daughters,  and  all  other  moneys  and  accounts  in 
which  they  may  be  severally  indebted  to  me  at  the  time  of 
my  decease." 

At  the  time  of  the  testator's  death,  his  son   James  was 


166  CASES  IN  CHANCERY. 

Smith  v.  Smith. 

indebted  to  him  in  a  large  amount.  His  share  of  the 
personal  estate  was  retained  by  the  executors,  and  divided 
among  the  other  children  of  the  testator,  but  not  in  an 
amount  sufficient  to  equalize  the  shares  under  the  will.  A 
large  balance  was  still  due,  for  which  the  executors  hold  a 
judgment  against  him. 

The  provisions  of  the  will  are  too  clear  to  admit  of 
doubt.  The  testator  unquestionably  intended  that  his 
entire  estate,  real  and  personal,  should  be  equally  divided 
among  all  his  children — language  cannot  make  it  plainer. 
The  two  clauses  of  the  will  are  to  be  taken  in  connection, 
and  so  read  as  to  make  one  harmonious  provision.  He 
did  not  intend  to  devise  one  equal  fourteenth  of  his  land 
absolutely  to  each  child — no  matter  what  might  be  the 
amount  of  his  or  her  indebtedness,  and  leave  his  estate  to 
the  hazard  of  recovering  back  the  surplus — any  more  than 
he  intended  to  vest  absolutely  in  each  legatee  a  right  to 
one-fourteenth  of  the  personal  estate.  What  the  testator 
intended,  and  what  the  will  effects  is,  to  give  to  each 
legatee  and  devisee  an  equal  fourteenth  of  the  entire 
estate  charged  with  the  payment  of  his  debts.  The  de- 
sign is  accomplished  by  including  the  debt  of  each  child 
in  the  aggregate  of  the  estate,  and  giving  each  child  a 
share  of  the  gross  amount,  less  his  individual  indebted- 
ness. To  object  that  the  title  is  in  the  heir,  and  that  the 
executors  are  not  empo.wered  by  the  testator  to  sell  the  land 
or  effect  an  equal  division,  is  dealing  with  the  shadow, 
and  not  with  the  substance.  It  is  the  duty  of  the  execu- 
tors to  see  that  the  intention  of  the  testator  is  carried  into 
effect,  and  that  each  child  receives  his  equal  share  accord- 
ing to  the  provisions  of  the  will ;  and  if  the  executors 
lack  the  necessary  power,  this  court  will  aid  them  in 
effectuating  that  purpose.  Neither  the  want  of  power  in 
the  executors,  nor  their  mistakes  (if  any  have  been  com- 
mitted) in  the  settlement  of  the  estate,  nor  even  their 
willful  misconduct,  will  be  permitted  to  defeat  the  clear 
intent  of  the  testator  and  the  legal  rights  of  the  devisees. 


OCTOBER  TERM,  1860.  167 


Smith  v.  Smith. 


The  land  has  been  sold  ;  the  fund  is  now  in  court  and  under 
its  control;  there  is  no  difficulty  in  carrying  out  the  provi- 
sions of  the  will,  and  it  is  the  duty  of  the  court  to  dispose 
of  the  fund  in  accordance  with  that  purpose.  This  was  one 
of  the  purposes  for  which  this  proceeding  was  instituted. 
The  bill  was  filed  by  William  Smith,  one  of  the  devisees, 
and  also  one  of  the  executors  of  the  will  of  Nathan  Smith. 
After  reciting  the  provisions  of  the  will,  the  bill  charges  that 
the  interest  of  the  devisees  requires  that  a  partition  be  made; 
but  inasmuch  as  the  lands  were  so  circumstanced  that  a  sale 
thereof  would  be  necessary  in  order  to  a  fair  division  of  the 
estate  of  Nathan  Smith  between  his  children  according  to  the 
directions  of  his  will,  and  as  doubts  were  entertained  whether 
such  division  could  be  fairly  made,  except  by  the  interven- 
tion of  this  court,  therefore  the  aid  of  the  court  was  invoked. 
The  sale  has  been  made  in  pursuance  of  that  prayer.  The 
complainant  now  claims  the  one- fourteenth  part  of  the  pro- 
ceeds of  the  sale  by  virtue  of  an  individual  judgment  of  his 
own  against  his  brother.  He  certainly  can  claim  no  higher 
or  better  right  under  the  judgment  than  the  debtor  himself 
had.  He  took  under  the  will  the  one-fourteenth,  subject  to 
the  payment  of  his  debts  to  the  estate.  The  proceeds  of  the 
sale  of  James'  fourteenth  must  be  applied  first  to  equalize  the 
shares  of  all  the  children  of  the  testator,  as  required  by  the 
will,  and  the  surplus,  if  any,  must  be  paid  to  the  judgment 
creditors. 

There  is  nothing  in  the  objection  that  the  executors,  as 
such,  are  not  before  this  court.  It  is  not  necessary  that  they 
should  be  to  enable  the  court  to  direct  the  disposition  of  the 
fund.  That  is  done  for  the  benefit  of  those  interested  in  the 
estate  who  are  before  the  court.  It  will  be  the  duty  of  the 
executors  to  carry  the  direction  into  effect — at  any  rate  this 
objection  does  not  lie  in  the  mouth  of  William  Smith,  who 
is  himself  one  of  the  executors,  and  who  is  bound  to  see  that 
the  provisions  of  the  will  are  carried  into  effect. 


168  CASES  IN  CHANCERY. 


Price  v.  Sisson. 


FRANCIS  PRICE  vs.  CHARLES  G.  SISSON  and  others. 

1.  By  force  of  the  statute,  a  decree  directing  a  conveyance  to  be  made 
vests  the  estate,  so  that  the  rights  of  the  parties,  in  case  of  a  variance  be- 
tween the  terms  of  the  decree  and  of  the  conveyance,  must  depend  upon 
the  former  rather  than  upon  the  latter. 

2.  The  terms  of  such  decree  must  be  construed  precisely  as  the  convey- 
ance itself  would  be. 

3.  A  conveyance  to  the  grantees  and   their  heirs  for  the  use  of  the 
grantees  and  their  heirs,  in  trust  for  the  persons  beneficially  interested, 
does  not  vest  the  legal  estate  in  the  latter  by  virtue  of  the  statute  for  trans- 
ferring uses  into  possession. 

4.  And  where  the  deed  is  thus  technically  drawn,  the  trustees  take  the 
legal  estate  by  virtue  of  the  limitation,  without  the  aid  of  any  reasoning 
derived  from  the  nature  of  the  estate. 

5.  In  construing  limitations  of  trusts,  courts  of  equity  adopt  the  rule  of 
law  applicable  to  legal  estates. 

6.  An  estate  was  conveyed  to  the  grantees  in  trust  to  permit  the  grantor 
and  his  family  and  the  father  of  the  grantor,  during  their  lives  respectively, 
to  enjoy  the  estate,  and  take  the  rents  and  profits  thereof,  and  after  their 
death  in  trust  to  convey  the  premises  to  the  son  of  the  grantor  and  "  to 
such  other  lawful  issue  as  the  grantor  may  then  have  living,  share  and 
share  alike,  in  fee  simple,  as  soon  as  he  or  they  arrive  at  age," — held,  that 
the  son  of  grantor  had  a  vested  interest,  which  was  not  determinable  by 
his  death  before  the  happening  of  the  contingency  upon  which  the  legal 
estate  was  to  be  conveyed  to  him,  viz.,  the  determination  of  the  intervening 
life  estates.     The  general  rule,  as  applied  to  legal  estates,  is,  no  remainder 
will  be  construed  to  be  contingent  which  may,  consistently  with  the  inten- 
tion, be  deemed  vested. 

7.  It  is  the  uncertainty  of  the  right  of  enjoyment  which  renders  the 
remainder  contingent,  not  the  uncertainty  of  the  actual  enjoyment. 

8.  In  a  deed,  the  word  "  issue  "  is  universally  a  word  of  purchase,  and 
whenever  the  word  is  made  use  of  as  a  word  of  purchase,  either  in  a  deed 
or  in  a  will,  it  is  synonymous  and  co-extensive  with  the  term  "descendants." 


The  case  was  heard  on  bill,  answer  and  proofs. 
Bradley  and  William  Pennington,  for  complainant. 
Zabriskie,  for  defendants. 

THE  CHANCELLOR.    On   the   10th  of  December,  1800, 
Mindert    Garrabrants,    Jr.,   intermarried    with    Effie,   the 


OCTOBER  TERM,  1860.  169 

Price  v,  Sisson, 

daughter  of  John  Van  llouten,  and  on  the  29th  of  Sep- 
tember, 1801,  had  by  her  issue,  one  son,  Minderfc  Garra- 
brants  (3.)  On  the  10th  of  August,  1807,  he  executed 
to  John  Van  Houten,  the  father,  and  Helmah  Van 
Houten,  the  brother  of  his  wife,  a  conveyance  in  fee 
simple  of  all  his  real  estate,  including  a  tract  of  about 
fifty  acres  at  Slonger,  in  trust  for  certain  purposes  therein, 
specified. 

On  the  29th  of  June,  1808,  a  bill  was  filed  in  this  court 
by  the  grantor  in  the  said  deed,  Mindert  Garrabrants, 
Jr.,  against  the  grantee  and  his  wife  and  only  child, 
cestuis  que  trust  therein  named,  praying  that  the  said  deed 
might  be  set  aside  and  made  void,  as  executed  by  mistake. 
The  trustees  answered,  admitting  that  the  deed,  as  execu- 
ted, was  not  in  all  respects  in  conformity  with  the  agreement 
under  which  the  same  was  executed.  A  decree  was  therefore 
made  on  the  9th  of  September,  1808,  declaring  the  said  in- 
strument to  be  utterly  void  and  of  no  effect,  and  decreeing 
that  the  same  should  be  set  aside,  vacated  and  annulled,  both. 
at  law  and  in  equity. 

And  it  was  in  and  by  the  said  decree  further  ordered,, 
adjudged  and  decreed  that  the  said  Mindert  Garrabrants,. 
Jr.,  should,  on  or  before  the  third  Tuesday  in  November 
then  next,  execute  and  deliver  to  the  said  John  Vau 
Houteu  and  Helmah  Van  Houteu  a  conveyance  of  the 
lands  described  in  the  deed  of  the  10th  of  August,  1807, 
in  trust,  that  the  grantees,  and  the  survivor  of  them  and 
the  heirs  of  such  survivor,  should  permit  Mindert  Garra- 
brants, Jr.,  and  his  family,  and  Miudert  Garrabrants,. 
Sr.,  the  father  of  Mindert  Garrabrants,  Jr.,  during  their 
lives,  respectively,  to  occupy  and  possess  the  measuagea 
and  tenements,  and  the  rents,  issues  and  profits  thereof,, 
for  the  support  and  maintenance  of  the  said  Miudert 
Garrabrants,  Jr.,  and  of  his  father,  Mindert  Garrabrants,, 
Sr.,  during  his  life ;  and  upon  this  further  trust,  that 
after  the  decease  of  the  said  Mindert  Garrabrants,  Jr., 
and  of  his  father,  Miudert  Garrabrants,  Sr.,  that  then  the 


170  CASES  IN  CHANCERY. 

Price  y.  Sisson. 

said  trustees  and  the  survivor  of  them  and  the  heirs  of 
such  survivor,  shall  convey  the  whole  of  the  said  premises 
to  the  said  Mindert  Garrabrants  (3),  son  of  the  said 
Mindert  Garrabrants,  Jr.,  and  Effie,  his  wife,  and  to  such 
other  lawful  issue  as  he,  the  said  Mindert  Garrabrants 
Jr.,  may  then  have  living,  share  and  share  alike,  in  fee 
simple,  as  soon  as  he  or  they  arrive  of  age,  (reserving  to 
the  widow  of  the  said  Mindert  Garrabrants,  Jr.,  if  any  lie 
should  leave,  the  said  widow's  legal  estate  of  dower  in  the 
said  premises.) 

The  conveyance  was  not  executed  within  the  time  ap- 
pointed by  the  decree;  but  on  the  19th  of  March,  1809, 
Mindert  Garrabrants,  Jr.,  executed  a  deed  for  the  same 
premises  to  the  grantees  in  the  former  deed  upon  trusts 
slightly  variant  in  terms  from  the  language  of  the  decree. 
The  deed  contains  no  recital  of  a  reference  to  the  decree 
in  chancery,  but  the  bill  of  complaint  in  this  cause  charges, 
and  the  answer  admits,  that  it  was  made  in  compliance  and 
in  conformity  with  the  said  decree. 

Mindert  Garrabrants  (3)  came  of  age  on  the  29th  of 
September,  1822.  On  the  29th  of  July,  1825,  Mindert 
Garrabrants  (1st),  one  of  the  cestuis  que  trust  for  life,  died. 
In  the  years  1834,  1835  and  1836,  Mindert  Garrabrants 
(3),  by  deed  of  conveyance  and  sale,  with  covenants  of 
general  warranty,  conveyed  the  tract  at  Slonger,  in  sepa- 
rate parcels,  to  different  purchasers.  These  titles  subse- 
quently became  united  in  Francis  Price,  the  present  com- 
plainant, who  claims  a  fee  in  the  premises  from  Mindert  Gar- 
rabrants (3.) 

Mindert  Garrabrants  (2),  the  grantor  in  the  deed  of 
trust,  and  one  of  the  cestuis  que  trust  for  life  under  it,  sur- 
vived his  son.  and  died  on  the  3d  of  September,  1846.  He 
left  no  issue  other  than  the  two  daughters  of  his  son,  Mindert 
Garrabrants  (3.) 

Mindert  Garrabrants  (3)  died  on  the  1st  of  May,  1837, 
leaving  two  daughters,  infants  of  tender  year?,  Mary 
Elizabeth,  who  intermarried  with  Charles  G.  Sisson,  and 


OCTOBER  TERM,  1860.  171 


Price  v.  SNson. 


Effie,  who  intermarried  with  James  Van  Buskirk,  defendants 
in  this  suit. 

John  Van  Houten  and  Helm  ah  Van  Houten,  the  trustees 
in  the  deed  of  trust,  both  died  in  the  lifetimes  of  the  cestuis 
qne  trust  of  the  life  estates  in  the  lands  conveyed  on  the  17th 
of  May,  1852.  John  H.  Van  Houten,  only  son  and  heir-at- 
law  of  Helmah  Van  Houten,  the  surviving  trustee,  made  a 
conveyance  of  the  trust  property  specified  in  the  deed  of  trust 
to  the  two  daughters  of  Mindert  Garrabrants  (3d),  as  the 
only  lawful  issue  of  the  said  Mindert  Garrabrauts  (2d)  living 
at  his  death. 

An  action  at  law  having  been  commenced  by  them  for  the 
recovery  of  the  property  at  Slonger,  the  complainants  filed 
their  bill  in  this  cause,  to  restrain  the  defendants  from  fur- 
ther proceeding  at  law,  and  for  the  confirmation  of  their 
title. 

The  main  controversy  in  this  cause,  arises  upon  the  true 
construction  of  the  trust  deed  executed  by  Mindert  Garra- 
brants, Jr.,  under  the  authority  of  a  decree  of  this  court, 
bearing  date  on  the  9th  of  September,  1808. 

Both  parties  claim  under  that  conveyance.  The  complain- 
ant claims  under  a  title  derived  through  Mindert  Garrabrants 
the  third,  one  of  the  cestuis  que  trust.  The  defendants,  two 
of  the  children  of  Mindert  Garrabrants  the  third,  claim  the 
premises,  not  through  their  father,  but  by  virtue  of  a  deed 
executed  by  the  trustee  to  them,  as  the  lawful  issue  of  their 
grandfather,  Mindert  Garrabrants  the  second,  pursuant  to  the 
provisions  of  the  trust.  It  will  be  assumed,  for  the  purpose 
of  the  investigation,  that  the  entire  estate,  legal  or  equitable, 
to  which  Mindert  Garrabrants  the  third  was  entitled,  has  beeii 
legally  transferred  to  and  vested  in  the  complainant. 

What  estate  did  Mindert  Garrabrants  (3d)  take  under  that 
deed  or  decree  ? 

By  the  act  of  June  13th,  1799,  §  47,  which,  at  the  data 
of  the  decree,  was  and  still  is  in  force,  it  is  enacted  that 
where  a  decree  of  the  Court  of  Chancery  shall  be  made 


172  CASES  IN  CHANCERY. 

Price  v.  Sisson. 

for  a  conveyance,  release,  or  acquittance  and,  the  party  against 
whom  the  said  decree  shall  pass,  shall  not  comply  therewith 
by  the  time  appointed,  then  such  decree  shall  be  considered 
and  taken,  in  all  courts  of  law  and  equity,  to  have  the  same 
operation  and  effect,  and  be  as  available  as  if  the  conveyance, 
release,  or  acquittance  had  been  executed  conformably  to 
such  decree.'  Paterson's  Laws  433,  §  47;  Nixon's  Dig.  94, 
§56. 

The  time  limited  by  the  decree  for  the  delivery  of  the  con- 
veyance was  the  3d  of  November,  1808.  It  was  not  deliv- 
ered till  the  15th  of  March,  1809.  By  force  of  the  statute, 
therefore,  the  decree  has  the  same  operation  and  effect  as  if 
the  conveyance  had  been  executed  conformably  to  the  decree. 
By  operation  of  the  decree,  the  title  vested  before  the  deed 
was  executed.  The  rights  of  the  parties,  therefore,  in  case 
of  a  variance  between  the  terms  of  the  decree  and  of  the 
conveyance,  must  depend  upon  the  former  rather  than  upon 
the  latter.  The  bill,  in  this  case,  charges,  and  the  answer 
admits,  that  the  conveyance  was  made  in  compliance  and  in 
conformity  with  the  decree.  If,  however,  in  the  progress  of 
the  investigation,  it  shall  appear  that  the  deed  contains  any 
clause  adverse  to  the  title  of  Mindert  Garrabrants  (3d)  or 
those  claiming  under  him,  his  rights  cannot  thereby  be  preju- 
diced. At  the  time  of  the  conveyance,  he  was  an  infant, 
and,  however  the  rights  of  the  parties  to  the  conveyance, 
competent  to  contract,  might  be  affected  by  giving  or  accept- 
ing a  conveyance  variant  from  the  terms  of  the  decree,  it  is 
clear  that  an  infant  could  not  thus  be  deprived  of  his  rights 
under  the  decree. 

Again,  the  terms  of  the  decree  must  be  construed  pre- 
cisely as  the  conveyance  itself  would  be  if  executed  within 
the  time  appointed  for  its  execution.  The  language  of 
the  statute  is  that  the  decree  shall  be  taken  to  have  the 
same  operation  and  effect,  and  be  as  available  as  if  the 
conveyance  had  been  executed  conformably  to  the  decree. 
The  same  principles  of  interpretation,  therefore,  are  to 


OCTOBER  TERM,  1860.  173 

Price  v.  Sisson. 

be  applied  as  if  the  terms  of  the  decree  were  duly  and  fully 
embodied  in  the  conveyance. 

With  these  suggestions  in  regard  to  the  nature  and  object 
of  the  investigation,  we  approach  the  immediate  subject  of 
our  inquiry.  What  estate  did  Mindert  Garrabrants  take 
by  virtue  of  the  decree  ? 

By  the  terras  of  the  deed,  the  legal  estate  vested  in  the 
immediate  grantees  in  trust  for  the  persons  beneficially 
interested.  The  trust  was  not  executed  by  the  statute  for 
transferring  uses  into  possession,  so  as  to  vest  the  legal 
estate  in  the  cestuis  que  trust,  or  in  either  of  them.  The 
deed  is  technically  drawn  for  the  creation  of  a  trust  estate, 
as  distinguished  from  the  legal  title.  The  conveyance  is 
made  to  the  grantees  and  their  heirs,  for  the  use  of  the 
grantees  and  their  heirs,  in  trust  for  the  persons  benefi- 
cially interested  in  the  grant.  This  is  the  precise  formula 
for  the  creation  of  a  trust.  2  Bla.  Com.  336,  Christian's 
note. 

Where  a  use  is  limited  upon  a  use,  the  statute  executes 
only  the  first  use.  2  Bla.  Com.  336  ;  1  Cruise's  Dig.  453, 
title  12,  c.  1,  §  1  ;  Hill  on  Trustees  63,  229. 

This  familiar  principle  is  thus  distinctly  stated  because, 
upon  the  argument,  it  was  strongly  urged  that,  inasmuch 
as  by  the  terms  of  the  trust  the  grantees  were  not  to  pay 
the  rents  and  profits  to  Mindert  Garrabrants  (1st)  and 
Mindert  Garrabrants  (2d),  but  to  permit  them,  during 
their  respective  lives,  to  occupy  and  possess  the  estate,  and 
the  rents  and  profits  thereof,  during  their  respective  lives, 
the  use  was  executed  by  the  statute,  and  that  they  had, 
respectively,  a  legal  estate  for  life.  There  is  a  numerous 
class  of  cases  which  hold  that  where  the  donee  to  uses  is 
merely  to  permit  the  eestui  que  use  to  take  and  receive  the 
rents  and  profits,  or  to  occupy  and  enjoy  the  estate,  no 
trust  is  created,  but  the  estate  will  be  vested  by  the 
statute  in  the  person  who  is  to  receive  the  rents.  But 
this  is  but  the  limitation  of  another  general  rule,  viz.,  that 
where  the  donee  to  uses  is  entrusted  with  duties  or 

VOL.  n.  L 


174  CASES  IN  CHANCERY. 

Price  v.  Sisson. 

powers,  for  the  due  discharge  of  which  it  is  requisite  that 
he  should  take  the  legal  estate,  the  use  is  not  executed, 
but  a  trust  arises.  If,  on  the  other  hand,  the  duties  im- 
posed on  the  trustee  are  not  such  as  to  require  that  he 
should  take  the  legal  estate,  the  use  is  executed.  Barker 
v.  Greenwood,  4  Mees.  &  \V.  429  ;  Hill  on  Trustees  229,  231, 
233,  and  cases  cited  iu  note  g. 

This  rule  applies  where  the  conveyance  is  to  the  trustees 
to  the  use  of  another,  but  where  the  conveyance  is  to  the 
trustees,  and  to  the  use  of  the  trustees,  they  take  the  legal 
estate  by  virtue  of  the  limitation,  without  the  aid  of  any 
reasoning  derived  from  the  nature  of  the  trust.  Powell  on 
Dev.  (Jarman}  220,  221,  note  7  ;  Hill  on  Trustees  235. 

The  entire  legal  estate  under  the  conveyance  is  unques- 
tionably vested  in  the  immediate  grantees,  John  Van  Hou- 
ten  and  Helmah  Van  Ilouten,  with  limitations  of  trusts  to 
Mindert  Garrabrants  (1st)  and  Miudert  Garrabrants  (2d) 
for  their  respective  lives,  and  then  over  to  Miudert  Garra- 
brants (3d)  and  the  other  lawful  issue  of  Miudert  Garra- 
brants (2d). 

In  construing  limitations  of  trusts,  courts  of  equity  adopt 
the  rules  of  law  applicable  to  legal  estates.  Declarations  of 
trust,  either  of  real  or  personal  estate,  are  construed  in  the 
same  manner  as  common  law  conveyances,  where  an  estate 
is  finally  limited  by  deed.  4  Cruise  310,  title  32,  c.  19,  § 
65  ;  1  Sanders  on  Uses  and  Trusts  280. 

I  am  of  opinion,  said  Lord  Northington,  in  Wright  v. 
Pearson,  1  Eden  125,  that  a  limitation  in  trust,  perfected 
and  declared  by  a  testator,  must  have  the  same  construction 
as  the  devise  of  an  estate  executed.  The  rule,  notwithstand- 
ing some  conflict  among  the  earliest  cases,  appears  to  be  sat- 
isfactorily settled.  Cases  Temp.  Talbot  19,  Lord  Glenorchy 
v.  Bosvitte ;  Jones  v.  Morgan,  1  Bro.  C.  C.  222 ;  Garth  v. 
Baldwin,  2  Vesey  655. 

Regarding  the  trusts  under  the  conveyance  as  executed, 
and  the  limitations  of  the  equitable  interest  as  complete 
and  final,  so  that  the  limitations  of  trust  are  to  be  con- 


OCTOBER  TERM,  1860.  175 

Price  v.  Sisson. 

strued  by  the  rules  of  law  applicable  to  legal  estates,  let  us 
examine  what  estate  is  given  to  Mindert  Garrabrants  (3<1). 
The  estate  is  conveyed  to  the  grantees  in  trust,  to  permit 
the  grantor  and  his  family  and  the  father  of  the  grantor, 
during  their  lives  respectively,  to  enjoy  the  estate,  and 
take  the  rents  and  profits  thereof,  and  after  their  death, 
in  trust,  to  convey  the  whole  of  said  premises  to  Mindert 
Garrabrants  (3d),  the  son  of  the  grantor,  and  to  such  other 
lawful  issue  as  the  grantor  may  then  have  living,  share 
and  share  alike  in  fee  simple,  as  soon  as  he  or  they  arrive 
at  age.  Divesting  the  estates  of  the  cestuis  que  trust  of 
their  character  as  trusts,  and  treating  them  as  pure  legal 
estates,  the  grant  would  be  to  Mindert  Garrabrants  (1st) 
and  Mindert  Garrabrants  (2d)  an  estate  for  their  joint 
lives  and  the  life  of  the  survivor  of  them,  with  remainder 
to  Mindert  Garrabrants  (3d)  and  such  other  lawful  issue 
as  Mindert  Garrabrants  (2d)  may  then  have,  as  tenants  in. 
common  in  fee  simple,  share  and  share  alike,  to  be  en- 
joyed as  they  severally  attain  the  age  of  twenty-one  years. 
This  is  stating  the  case  most  strongly  in  favor  of  the  com- 
plainant, and  rests  on  the  assumption  that,  by  the  con- 
veyances, an  equitable  estate  in  remainder  is  vested  hi 
Mindert  Garrabrants  (3d)  which  was  not  liable  to  be  de- 
feated by  his  death  before  the  determination  of  the  inter- 
vening estates  for  life  of  his  father  and  grandfather.  The 
defendants  maintain  that  no  estate  whatever,  legal  or 
equitable,  by  the  terms  of  the  grant,  vests  in  Mindert 
Garrabrants  (3d).  That  the  legal  estate  is  wholly  in  the 
trustees,  and  the  right  to  the  conveyance  of  the  estate, 
legal  or  equitable,  in  Mindert  Garrabrants  (3d)  is  con- 
tingent upon  his  surviving  both  the  tenants  for  life.  I 
think  it  clear,  however,  that,  under  the  conveyance,  Miu- 
dert  Garrabrants  (3d)  had  an  equitable  interest,  viz.,  t<x 
have  the  whole  estate,  legal  and  equitable,  conveyed  to> 
him  upon  the  determination  of  the  life  estates  of  hia, 
father  and  grandfather.  Construing  the  limitation  of 
trust  by  the  same  principles  which  govern  in  the  cou- 


176  CASES  IN  CHANCERY. 

Price  v,  Sisson. 

etruetion  of  the  legal  estates,  the  interest  of  Mindert  Garra- 
brants  (3d)  is  a  vested  interest,  which  is  not  determinable  by 
his  death  before  the  happening  of  the  contingency  upon 
which  the  legal  estate  is  to  be  conveyed  to  him,  viz.,  the  de- 
termination of  the  intervening  life  estates. 

The  rale,  as  applied  to  legal  estates,  is,  that  no  remainder 
will  be  construed  to  be  contingent  which  may,  consistently 
with  the  intention,  be  deemed  vested.  Every  remainder  man 
may  die  without  issue  before  the  death  of  the  tenants  for  life. 
It  is  the  present  capacity  of  taking  effect  in  possession,  if  the 
possession  would  become  vacant  before  the  estate  limited  in 
remainder  determines,  that  distinguishes  a  vested  from  a 
contingent  remainder.  Fearne  on  Rem.  149  (4lh  ed.}  ;  Kent's 
Com.  203. 

A  remainder,  says  Chancellor  Walworth,  is  vested  i» 
interest  where  the  person  is  in  being  and  ascertained, 
who  will,  if  he  lives,  have  an  absolute  and  immediate 
right  to  the  possession  of  the  land  upon  the  ceasing  o? 
failure  of  all  the  precedent  estates,  provided  the  estate 
limited  to  him  by  the  remainder  shall  so  long  continue. 
ID  other  words,  where  the  remainder  man's  rights  to  an 
estate  in  possession  cannot  be  defeated  by  third  persons 
or  contingent  events,  or  by  the  failure  of  a  condition 
precedent  if  he  lives,  and  the  estate  limited  to  him  by 
way  of  remainder  continues  till  all  the  precedent  estates 
are  determined,  his  remainder  is  vested  in  interest.  Hawley 
v.  James,  5  Paige  466. 

A  remainder  is  contingent,  although  the  remainder 
man  is  in  being  and  ascertained,  so  long  as  it  remains 
uncertain  whether  he  will  be  absolutely  entitled  to  the 
estate  limited  to  him  in  remainder  if  he  lives,  and  such 
estate  continues  until  all  the  precedent  estates  have  ceased. 
Ibid.  467. 

When  the  person  to  whom  a  remainder  after  a  life 
estate  is  limited  is  ascertained,  and  the  event  upon  which 
it  is  to  take  effect  is  certain  to  happen,  it  is  a  vested  re- 
mainder, although  by  its  terms  it  may  be  entirely  defeated 


OCTOBER  TERM,  1860.  177 

Price  v.  Sisson. 

by  the  death  of  such  person  before  the  determination  of  the 
particular  estate.  It  is  the  uncertainty  of  the  right  of  en- 
joyment which  renders  a  remainder  contingent,  not  the  un- 
certainty of  its  actual  enjoyment.  Williamson  v.  Field,  2 
SarifJf.  C.  R.  533.  See  also  Moore  v.  Lyons,  25  Wend.  144. 

The  better  opinion  also  is,  says  Chancellor  Kent,  that  if 
there  be  a  devise  to  trustees  and  their  heirs  during  the 
minority  of  a  beneficial  devisee,  and  then  to  him,  or  upon 
trust  to  convey  to  him,  it  conveys  a  vested  remainder  in 
fee,  and  takes  effect  in  possession  when  the  devisee  attains 
twenty-one.  If  the  devisee  dies  before  twenty-one,  the 
estate  descends  to  his  heirs  as  a  vested  inheritance.  4  Kent's 
Com.  204. 

These  authorities  show  that  the  equitable  interest  of 
Miudert  Garrabrants  (3d)  under  the  conveyance  was  a 
vested  interest.  He  was  in  esse  at  the  date  of  the  deed, 
and  his  interest  vested  immediately  on  its  execution  and 
delivery,  subject  to  be  divested  pro  tanto  upon  the  birth 
of  after-born  issue.  The  only  after-born  issue  of  Mindert 
Garrabrants  (2d),  the  grantor,  were  the  two  daughters  of 
his  son,  Mindert  Garrabrants  (3d),  who  are  the  defendants 
in  this  cause.  They  survived  the  grantor,  and  became 
entitled  with  their  father,  by  the  terms  of  the  trust,  each 
to  one  equal  unJ;v:ded  third  of  the  equitable  estate.  Ap- 
plying the  principles  which  govern  the  construction  of 
legal  instruments  to  the  terms  of  this  trust,  such  must  be 
the  result. 

In  a  deed  the  term  "  issue  "  is  universally  a  word  of  pur- 
chase. Doe  v.  Collis,  4  T.  R.  299. 

And  wherever  the  term  is  used  as  a  word  of  purchase, 
either  in  a  deed  or  in  a  will,  it  is  synonymous  and  co-ex- 
tensive with  the  term  "descendants,"  and  includes  all 
persons  who  answer  that  description.  Such  is  the  legal 
construction  of  the  term  in  all  cases  where  its  natural 
meaning  is  not  controlled  by  a  plain  intent,  apparent  on 
the  face  of  the  instrument.  2  Jarman  on  Wills  33,  353 ;  1 
Roper  on  Leg.  158  ;  2  Williams  on  Executors  953  ;  2  Spence 


178  CASES  IN  CHANCERY. 

Price  v.  Sisson. 

on  Eq.  JUT.  154  ;  Leigh  v.  Norbery,  13  Vesey  340  ;  Sibley  v. 
Perry,  7  Vesey  531;  Davenport  v.  Hanbury,  3  Fese?/  257; 
freeman  v.  Parsley,  3  Fesey  421  ;  Ctoo&  v.  Cook,  2  Fern. 
545;  Hampson  v.  JSrandwood,  1  Haddock  381. 

The  term  may  be,  and  often  is,  especially  in  wills,  con- 
strued as  meaning  children,  where  such  appears  to  be  the 
intention  of  the  testator.  But  such  intention  must  be 
gathered  from  the  instrument  itself.  This  is  but  an  in- 
stance of  the  general  principle,  that  the  will  is  to  be  con- 
strued according  to  the  intent  of  the  testator.  The  cases 
on  the  subject  are  exceedingly  numerous,  and  with  remark- 
able uniformity  they  sustain  the  principle  as  stated. 

It  is  urged,  and  with  seeming  force,  that  this  construc- 
tion is  against  reason  and  probability  ;  that  it  never  could 
have  been  intended  that  the  parent  and  his  children 
should  share  the  estate  equally.  The  objection  has  often 
been  made,  and  has  always  been  met  by  the  answer  that 
the  court  must  give  to  the  terms  of  an  instrument  their 
fair,  natural  and  ordinary  import,  unless  when  controlled 
by  a  plain  contrary  intent.  Tiiis  general  principle  is  not 
denied.  But  the  court  are  asked  to  go  back  of  the  de- 
cree, and  look  into  the  previous  proceedings  in  the  cause, 
to  ascertain  what  was  intended  by  the  term  "  issue,"  as 
used  in  the  decree,  and  in  the  deed.  And  from  these  it  is 
insisted  that  the  intention  was  to  exclude  from  the  lim- 
itation over  the  children  of  Mindert  Garrabrants  (3d). 
That  this  will  totally  vary  the  legal  effect  of  the  term 
used  in  the  decree  and  in  the  deed  is  not  denied.  But  it 
is  sought  to  be  justified  on  the  ground  that  the  estate 
being  created  by  the  decree,  and  not  by  the  deed,  the 
entire  proceedings  in  the  cause  may  be  resorted  to  for  its 
interpretation.  This,  I  think,  is  not  admissible.  By  the 
terms  of  the  statute  already  adverted  to,  (Nix.  Dig.  94,  § 
56,)  the  decree  is  to  be  considered  and  taken  in  all  courts 
of  law  and  equity  to  have  the  same  operation  and  effect, 
and  be  as  available,  as  if  the  conveyance  had  been  exe- 
cuted conformably  to  such  decree.  The  decree  is  to  be 


OCTOBER  TERM,  1860.  179 

Price  v.  Sisson. 

construed  as  if  the  deed  had  been  executed  pursuant  to 
its  terras.  The  deed  and  the  decree  must  be  alike  con- 
strued according  to  the  legal  effect  of  the  terms  used. 
The  same  principles  of  interpretation  are  to  be  applied  to 
each.  If  the  deed  had  been  executed  comformably  to 
the  terms  of  the  decree  within  the  time  prescribed,  it 
would  not  have  been  admissible  to  resort  to  the  proceed- 
ings in  the  cause  to  interpret  the  deed.  Where,  moreover, 
the  terms  of  the  decree  are  clear  and  unequivocal,  independ- 
ent of  the  statute,  its  construction  could  not  be  altered  by  a 
resort  to  the  pleadings. 

It  was  suggested,  rather  than  urged,  upon  the  argu- 
ment, that  these  trusts  should  be  regarded  as  executory, 
and  as  they  are  to  be  carried  into  effect  under  the  control 
of  the  court,  a  greater  latitude  of  interpretation  might  be 
adopted.  If  that  course  were  admissible,  and  the  deed 
could  be  interpreted  according  to  the  apparent  intention 
of  the  parties  without  regard  to  fixed  rules  of  interpreta- 
tion, it  would  become  a  grave  question,  whether  the  death 
of  Mindert  Garrabrants  (3d)  in  the  lifetime  of  his  father 
did  not  altogether  defeat  his  interest  in  the  estate,  and 
whether  that  was  not  the  real  design  of  the  parties  in  the 
creation  of  the  trust.  But  the  defendants  have  invoked 
in  support  of  their  title,  and  I  think  rightfully,  the  prin- 
ciple that  the  limitation  of  trust  estates  must  be  con- 
strued by  the  rules  of  law  applicable  to  legal  estates,  and 
the  further  principle  that  the  rights  of  the  parties  were 
unchangeably  fixed  by  the  terms  of  the  decree.  Adopting 
these  principles  in  support  of  their  claim,  the  court  cannot 
escape  the  application  of  well-settled  legal  principles  in  deal- 
ing with  the  trust  estate. 

It  has  been  said  that  in  the  interpretation  of  trusts  and 
marriage  settlements  the  most  favorable  exposition  will 
be  made  of  words  to  support  the  intention  of  the  parties. 
"  It  is,  however,  the  intention  of  the  parties  appearing  ou 
the  deed  that  always  governs  the  court  in  construction, 
not  the  arbitrary  conjecture  of  the  judge,  though  founded 


180  CASES  IN  CHANCERY. 

Price  v.  Sisson. 

on  the  highest  degree  of  probabilities."     Horry  v.  Horry,  2 
Dess.  126. 

Whatever  I  might  deem  proabble  in  regard  to  the  inten-. 
tion  of  the  parties,  I  do  not  feel  authorized  to  interfere  with 
well-settled  rules  of  construction. 

The  evidence  does  not  support  the  allegation  of  mental  in- 
capacity in  Mindert  Garrabrants  (3d)  to  convey  his  estate,  by 
reason  of  intemperance  or  from  any  other  cause.  Nor  is  it 
an  appropriate  case  for  the  application  of  the  principle  upon 
which  a  court  of  equity  interferes  to  protect  expectant  heirs 
or  reversioners  against  the  disposition  of  their  estates  on  the 
ground  of  constructive  fraud.  1  Story's  Eq.  JUT.  339,  note  1. 

Conceding  that  the  principle  might  have  been  applied  as 
against  the  original  purchasers,  it  cannot  operate  against  a 
subsequent  bonafide  purchaser  without  notice  of  the  fraud. 

By  the  terms  of  the  trust,  the  estate  vested  equally  in 
Mindert  Garrabrants  (3d)  and  his  two  daughters,  the  other  is- 
sue of  the  grantor.  Under  the  conveyance  executed  by  Min- 
dert Garrabrants  (3d)  the  complainant  is  entitled  in  equity  to 
his  interest  in  the  estate,  being  one  equal  third  part  thereof. 
The  title  to  the  legal  estate,  as  well  as  to  the  remaining  two- 
thirds  of  the  equitable  estate,  is  in  the  defendants. 

The  injunction  will  be  retained.  It  appears  from  the  evi- 
dence that  valuable  permanent  improvements  have  been 
made  upon  the  land  by  the  complainants,  which  give  them  a 
large  portion  of  their  value.  The  complainant  is  entitled  in 
equity  to  an  allowance  for  those  improvements,  so  far  as  they 
enure  to  the  benefit  of  the  estate  of  his  co-tenants.  A  refer- 
ence will  be  necessary  to  ascertain  the  character  and  value  of 
the  improvements.  Each  party  will  be  at  liberty  to  apply 
for  directions  as  to  the  terms  of  such  reference. 

AFFIRMED,  2  C.  E.  Gr.  475. 

CITED  in  Cueman  v.  JBroadnax,  8  Vr.  511 


OCTOBER  TERM,  jt860.  181 


Petit  v.  Chevelier. 


ERNEST  PETIT  vs.  IGXACE  CHEVELIER. 

Refusing  to  account,  excluding  a  co-partner  from  an  examination  of 
the  partnership  books,  and  from  a  participation  in  the  profits  of  the  busi- 
ness, although  breaches  of  duty,  do  not,  standing  alone,  call  for  the  inter- 
position of  the  court,  by  injunction  before  answer,  or  an  opportunity  of 
hearing.  

F.  B.  Ogden,  for  complainant. 

THE  CHANCELLOR.  The  parties  are  florists,  and,  in  1828, 
entered  into  partnership  for  the  extensive  cultivation  and 
sale  of  flowers  and  plants.  The  business  of  the  complainant 
has  been  to  attend  to  the  cultivation  of  the  plants.  The 
business  of  the  defendant  has  been  to  take  the  flowers  and 
plants  to  the  New  York  market,  for  sale.  The  bill  charges 
that,  by  reason  of  the  sales,  the  defendant  has  been  in  the 
habit  of  receiving  large  sums  of  money,  and,  after  the  pay- 
ment of  numerous  bills  and  expenses,  the  complainant  believes 
that  the  defendant  now  holds  in  his  hands,  as  the  profits  of 
the  partnership,  about  the  sum  of  $2500;  that  the  defendant, 
since  the  commencement  of  the  partnership,  has  pretended  to 
keep  an  account  of  sales  made  by  him,  and  of  moneys  re- 
ceived and  expended;  that  he  has  always  refused  to  permit  the 
complainant  to  examine  said  books,  and  when  requested  so  to 
do  by  complainant,  has  insulted  and  abused  him;  that  no 
settlement  of  the  partnership  accounts  hath  ever  been  made, 
but  the  defendant  hath  refused,  though  requested  so  to  do,  to 
come  to  a  fair  settlement,  or  to  account  to  complainant  for  his 
share  of  the  profits  of  the  partnership  business  now  in  his 
hands. 

The  bill  prays  for  a  dissolution  of  the  partnership,  an 
account,  and  for  an  injunction,  and  for  the  appointment  of  a 
receiver. 

On  filing  the  bill,  the  complainant  asks  for  a  temporary 


182  CASES  IN  CHANCERY. 

Williamson  v.  Sykes. 

injunction  to  restrain  the  defendant  from  collecting  or  receiv- 
ing any  debt  or  money  due  the  partnership. 

Each  partner  has  an  equal  right  to  manage  the  partnership 
business,  and  to  receive  the  debts  due  the  firm.  By  the 
arrangement  between  these  parties,  it  was  made  the  special 
business  of  the  defendant  to  sell  the  plants  and  flowers  raised 
by  the  firm,  and  to  receive  the  proceeds  of  the  sales.  To 
restrain  the  defendant  from  exercising  his  lawful  calling,  and 
from  the  prosecution  of  his  daily  business,  is  a  delicate  exer- 
cise of  power,  and  should  be  resorted  to  only  in  a  clear  case 
and  upon  a  pressing  emergency.  No  such  exigency  is  shown 
by  the  complainant's  bill.  There  is  no  charge  of  insolvency  or 
allegation  of  danger  of  irreparable  loss.  It  has  no  analogy, 
therefore,  to  a  bill  to  restrain  waste  or  prevent  irreparable 
mischief.  In  such  case,  an  injunction  would  not  be  granted 
before  answer  filed,  without  notice  to  the  defendant,  and  an 
opportunity  afforded  of  putting  in  an  answer.  Read  v.  Bow- 
ers, 4  Bro.  Ch.  C.  441 ;  Lawson  v.  Morgan,  I  Price  303;  2 
Eden  on  Injunctions  359,  note  2. 

Refusing  to  account,  excluding  the  complainant  from  an 
examination  of  the  partnership  books,  and  from  a  participa- 
tion in  the  profits  of  the  partnership  business,  are  violations 
of  duty  in  a  partner,  affording  ground  of  just  complaint,  but, 
standing  alone,  they  are  not  sufficient,  before  answer,  or  with- 
out an  opportunity  afforded  to  the  defendant  of  being  heard, 
to  invoke  the  exercise  of  the  power  of  the  court  by  injunction. 

The  motion  for  the  injunction  must  be  denied. 


WILLIAMSON  vs. 

After  a  decree  pro  con/esso.  order  of  reference,  and  report  of  master,  the 
decree  will  be  opened,  and  the  defendant  let  in  to  answer,  if  the  equity  of 
the  case  requires  such  relaxation  of  the  rules  of  the  court. 


OCTOBER  TERM,  1860.  183 

"Williamson  v.  Sykes. 

Dudley  and  Beasley,  for  complainant. 
Stratton  and  Vroom,  for  defendants. 

THE  CHANCELLOR.  The  exception  taken  to  the  master's 
report  in  this  cause  is  not  sustained.  There  is  nothing  in 
the  cause  to  warrant  the  claim  of  commissions  on  the 
part  of  the  defendant.  The  bill  charges  that  the  whole 
amount  claimed  upon  the  contract  is  due.  No  answe'r 
lias  been  filed.  The  bill  is  taken  as  confessed.  All  the 
claims  made  by  way  of  set-off  were  admitted  and  allowed 
by  the  master.  So  far  as  the  evidence  in  this  case  is  con- 
cerned, the  complainant  is  entitled  to  have  the  master's 
report  confirmed  and  to  a  final  decree. 

Since  the  report  was  filed,  George  Sykes,  the  defend- 
ant, on  the  twelfth  day  of  November,  1860,  filed  his  bill 
of  complaint,  praying  that  the  contract  upon  which  the 
original  suit  by  Williamson  was  founded  may  be  re- 
formed ;  that  a  general  account  may  be  taken  of  the 
dealings  and  transactions  between  the  parties  in  interest; 
that  the  proceedings  in  the  suit  by  Williamson  may  be 
stayed,  and  that  he  may  have  such  relief  as  he  may  be 
entitled  to  in  equity.  Aside  from  all  technical  questions 
which  may  arise  as  to  the  character  and  frame  of  this  bill, 
and  the  time  of  exhibiting  it,  which  it  would  be  irrele- 
vant and  improper  now  to  anticipate,  the  fact  material  to 
the  present  inquiry  which  it  discloses  is,  that  at  the  time 
of  the  contract  made  by  Sykes,  which  Williamson  is  now 
seeking  to  enforce,  there  was  due  from  the  cestui  que  trust 
of  Williamson  to  Sykes  certain  moneys,  which  by  agree- 
ment were  to  be  deducted  from  the  amount  specified  in 
the  contract,  to  be  accounted  for  by  Sykes.  This  fact  is 
verified,  not  only  by  the  statement  ot  the  bill,  but  also  by 
the  affidavit  of  the  counsel  by  whom  the  contract  was 
drawn  and  who  is  the  witness  of  its  execution.  Assuming 
the  fact  thus  verified  to  be  true,  it  seems  clear  that  the 
report  of  the  master  is  for  a  larger  sum  that  Williamson 
is  entitled  ex  cequo  et  bono  to  recover,  and  that  in  equity 


184  CASES  IN  CHANCERY. 

Williamson  v.  Sykes. 

Sykes  is  entitled  to  have  an  account  taken  of  the  amount 
justly  due. 

The  only  question  then  is,  has  Sykes,  by  laches  on  his 
part,  or  by  misconduct  as  a  trustee,  forfeited  his  right  to 
an  investigation  of  the  account  and  to  an  allowance  of  his 
claims  against  the  estate.  Shall  he  now  be  admitted  to 
a  defence — and  if  so,  upon  what  terms?  This  renders 
necessary  a  recurrence  to  the  leading  facts  in  the  history 
of  the  controversy,  which  fortunately  are  not  disputed. 

In  May,  1824,  Anthony  S.  Earl,  of  the  county  of  Bur- 
lington, died  intestate,  seized  and  possessed  of  considera- 
ble personal  and  real  estate.  He  left  surviving  a  son  and 
a  daughter,  Mark  Anthony  Earl  and  Virginia  E.  Earl,  his 
heirs-at-law.  In  August,  1834,  George  Sykes  was  ap- 
pointed and  acted  alone  as  the  guardian  of  the  person  and 
estate  of  the  son,  Mark  Anthony  Earl.  In  February,  1835, 
he  was  appointed,  with  Taunton  Earl,  guardian  of  the 
person  and  estate  of  the  daughter,  Virginia  E.  Earl.  No 
account  of  either  guardianship  has  ever  been  settled. 

On  the  twenty-seventh  of  August,  1847,  Mark  Anthony 
Earl,  one  of  the  children,  died,  after  he  had  attained  his 
majority,  leaving  his  sister  Virginia  his  heir-at-law.  At 
the  time  of  his  death  he  was  seized  of  considerable  real 
estate,  which  he  inherited  from  his  father,  and  which 
thereupon  vested  in  his  sister  as  his  heir-at-law.  It  is 
also  claimed  that  at  the  time  of  his  death  he  was  largely 
indebted  to  Sykes,  partly  for  money  advanced  by  him  as 
guardian  during  his  minority,  and  partly  for  advances 
made  after  he  was  of  age.  These  advances  are  claimed 
to  have  constituted  by  contract  a  claim  upon  the  sister's 
interest  in  the  land  of  which  Mark  Anthony  Earl  died 
seized. 

After  the  death  of  her  brother,  on  the  twenty-seventh 
of  September,  1848,  Virginia  E.  Earl,  having  intermarried 
with  Jacob  R.  Taylor,  gave  to  Sykes  a  letter  of  attorney 
empowering  him  to  sell  certain  real  estate  which  had  de- 
scended from  her  father  to  her  brother  and  herself,  and 


OCTOBER  TERM,  1860.  185 



Williamson  v.  Sykes. 

which  upon  her  brother's  death  vested  in  her.  The  real 
estate  was  sold  by  virtue  of  that  power  for  $6500,  of  which 
$3000  was  received  by  Sykes  on  the  thirtieth  of  March,  1850, 
and  the  balance,  amounting  with  interest  to  $4082.50,  was 
received  by  him  on  or  before  the  first  of  July,  1853,  For 
that  balance  this  suit  was  instituted. 

On  the  eleventh  of  September,  1850,  after  the  receipt 
by  Sykes  of  $3000  on  account  of  the  sale  of  the  land,  a 
settlement  was  made  or  attempted  between  Virginia,  the 
ward,  and  her  husband,  of  the  one  part,  and  Sykes  and 
Taunton  Earl,  as  her  guardians,  of  the  other,  and  the  in- 
strument was  executed  by  Sykes  and  Earl  which  forms 
the  subject  of  the  present  controversy.  After  reciting  the 
fact  of  the  settlement  with  the  guardians  and  theii*  dis- 
charge from  their  guardianship,  the  instrument  is  as  fol- 
lows : 

"  Now  we,  the  said  George  Sykes  and  Tauntoti  Earl, 
do  hereby  acknowledge  that  there  is  due  to  the  joint 
estate  of  the  said  Virginia  E.  Taylor  and  her  brother,  the 
late  Mark  Anthony  Earl,  deceased,  the  sum  of  $3500 
from  Thomas  P.  Barkalow,  for  which  we  hold  proper 
vouchers  and  securities,  and  we  do  hereby  covenant  and 
agree  to  and  with  the  said  Jacob  E,  Taylor  and  wife  to 
account  to  them  for  their  legal  interest  in  said  sum,  when- 
ever the  same  shall  be  collected,  anything  in  the  said 
acquittance  or  discharge  to  the  contrary  thereof  in  any  wise 
notwithstanding." 

Sykes  now  claims  that  notwithstanding  that  settlement 
with  his  ward  and  his  discharge  from  his  guardianship, 
and  consequent  release  of  his  sureties,  he  still  has  unset- 
tled claims  against  his  ward  for  moneys  advanced  while 
guardian  and  for  commissions  as  guardian.  He  also 
claims  that  there  are  debts  due  him  from  Mark  Anthony 
Earl's  estate  which  are  a  legal  lieu  upon  this  estate  iu  the 
bands  of  the  sister,  » 

After  this  contract  was  executed,  Taylor  and  wife  con- 
veved  all  their  interest  iu  her  estate  to  Thomas  William- 


186  CASES  IN  CHANCERY. 

Williamson  v.  Sykes. 

son,  to  hold  in  trust  for  the  wife.  The  wife  has  since 
died,  leaving  an  infant  son  entitled  to  the  estate.  The 
bill  was  filed  by  Williamson,  as  trustee  for  the  infant,  to 
compel  the  payment  by  Sykes  of  the  money  due  upon  his 
contract.  Prior  to  the  filing  of  the  bill,  and  on  or  before 
the  first  of  July,  1853,  Sykes  had  received  the  whole  of 
the  purchase  money,  amounting  with  interest  to  $4082.50, 
which  he  covenanted  to  account  for  whenever  received. 
He  has  made  no  settlement  of  the  estate  of  Mark  An- 
thony Earl.  He  has  exhibited  no  account  of  his  claim 
against  Virginia. 

The  bill  in  this  cause  was  filed  on  the  seventh  of  July, 

1858,  and  the  subpoena  made  returnable  on  the  nineteenth 
of  that  month.     On  the    tenth    of  September,  he  obtained 
sixty  days   further   time   to  answer.     Four  months  passed 
and    no   answer   was   filed.      On  the   fourth   of  February, 

1859,  he  was  again  ordered   to  answer.     The  court  closed 
before  the  time  for  answering  expired.     More  than  a  year 
elapsed;    the  defendant  availed  himself  of  the  delay,  and 
filed    no  answer.      Upon  the  opening  of  the  court  he  was 
again    ordered    to   answer.     He    refused    or    neglected    to 
comply.      On  the    16th  of  April,  1860,  a  decree  pro  con- 
fesso  was  made,  and  the  matter  referred  to  a  master  to  take 
proofs. 

On  the  thirtieth  of  July,  1860,  after  the  complainant 
had  offered  his  evidence  before  the  master,  the  defendant 
.asked  to  open  the  decree  and  for  leave  to  answer.  Even 
,then  the  facts  now  relied  on  as  a  ground  of  equitable  re- 
.lief  were  not  brought  to  the  notice  of  the  court.  On  the 
.thirtieth  of  November,  1860,  when  the  complainant's  caso 
>was  about  to  be  brought  to  final  hearing,  Sykes  exhibits 
.his  bill  already  referred  to,  to  reform  the  contract  of  1850, 
.and  now  asks  that  proceedings  in  the  original  cause  be  stayed 
.until  the  questions  involved  in  this  new  suit  be  disposed  of 
and  determined. 

I  have  given  thus  in  detail  a  history  of  this  transaction, 
.as  stated  by  Mr.  Sykes  himself,  and  as  proven  by  the  re- 


OCTOBER  TERM,  1860.  187 

Williamson  v.  Sykes. 

cords  of  this  court,  and  it  exhibits  a  case  of  such  extreme 
persistent  breach  of  duty  on  the  part  of  a  trustee  towards 
those  whose  estate  he  has  in  his  hands,  as  would  fully  justify 
the  court  in  refusing  to  grant  him  any  relief.  It  is  not  neces- 
sary to  impute  intentional  fraud.  It  is  enough  to  see  there 
has  been  a  breach  of  duty  to  his  cestuis  que  trust,  and  a  per- 
sistent refusal  to  make  the  very  settlements  which  he  now 
asks  to  make. 

This  neglect  may,  to  some  extent,  be  susceptible  of  expla- 
nation, and,  upon  the  facts  as  they  now  appear,  the  report  of 
the  master  is  for  a  larger  amount  than  is  equitably  due.  I 
am  disposed,  therefore,  to  admit  the  defence,  but  it  must  be 
done  in  such  manner  and  upon  such  terms  as  will,  as  far  as 
possible,  guard  the  rights  of  the  infant  cestui  que  £rw.s£,  and 
avoid  unnecessary  delay.  There  is,  in  my  judgment,  no 
necessity  for  this  bill  to  reform  the  contract.  The  whole 
controversy  may  be  settled  in  the  original  cause,  if  the  de- 
fendant will  consent  to  answer  and  exhibit  his  accounts.  At 
any  rate,  the  defendant  may  fully  protect  himself  by  his 
answer.  As  the  bill  to  reform  the  contract  is  framed,  it  is 
obvious  that  great  delay  must  intervene  before  the  contro- 
versy can  be  settled.  That  question  meets  us  in  fimine,  before 
any  account  can  be  taken. 

I  shall  direct  the  master's  report  and  decree  pro  confesso 
to  be  ojxMied,  and  the  defendant  permitted  to  answer  upon 
the  following  terms,  viz.,  that  on  taxation  and  demand,  the 
costs  that  shall  have  been  incurred  by  the  complainant 
since  and  including  the  first  order  requiring  him  to  an- 
swer, be  paid ;  that  he  file  his  answer  to  the  complainant's 
bill,  together  with  his  accounts  touching  the  matter  Sit 
controversy,  within  thirty  days  from  this  date,  and  that 
within  the  same  time,  he  give  to  the  complainant  a  bond, 
with  sufficient  security,  to  be  approved  by  one  of  the 
masters  of  this  court,  or  by  the  Chancellor,  with  condition 
that  he  will  faithfully  account  for  the  trust  funds  in  his 
hands,  and  that  he  will  pay  to  the  complainant  or  to  bis 


188  CASES  IN    CHANCERY. 

> 

Owen  T.  Owen. 

cestui  que  trust,  the  amount  which  shall  eventually  be  decreed 
against  him. 

The  last  condition  is  annexed  as  a  matter  of  obvious  jus- 
lice.  The  defendant  is  here  asking  a  favor.  The  whole 
difficulty  and  delay  have  been  occasioned  by  his  own  acts 
and  breach  of  duty.  The  further  protraction  of  the  contro- 
versy may  end  in  a  total  loss  of  the  claim,  and  the  least  that 
can  be  done  is  to  afford  such  protection  to  her  interests  as 
shall  prevent  any  decree  that  may  be  made  in  her  favor,  from 
proving  nugatory. 


ADMINISTRATOR  OF  EZRA  OWEN  vs.  ADMINISTRATORS  OF 
MARY  OWEN. 

1.  A  testator  devised  as  follows,  viz.:     "Item.  I  give  and  bequeath  to 
my  beloved  wife  the  use  and  benefit  of  my  home  farm,  on  which  I  now 
live,  as  long  as  she  remains  my  widow.    At  her  marriage  or  decease,  I 
will  that  the  aforesaid  farm  be  sold,  at  one  or  two  years'  credit.     Item.  I 
give  and  bequeath,  also,  to  my  beloved  wife  Mary,  five  hundred  dollars 
of  the  money  arising  out  of  the  sale  of  said  farm."     By  a  subsequent 
clause,  the  testator  gave  as  follows  :     "Item.  I  give  and  bequeath  to  my 
beloved  wife  Mary,  one  hundred  dollars  out  of  the  personal  estate." 

2.  Held,  that  the  bequest  of  five  hundred  dollars  to  the  wife  was  vested 
at  death  of  testator,  and  at  her  death,  passed  to  her  personal  representa- 
tives. 

Vcinutta,  for  complainant. 
Dalrimple  and  Little,  for  defendants. 

THE  CHANCELLOR.  Ezra  Owen,  by  his  will,  gave  and 
devised  as  follows: 

"  Item.  I  give  and  bequeath  to  my  beloved  wife  the 
use  and  benefit  of  my  home  farm,  on  which  I  now  live,  as 
long  as  she  remains  my  widow.  At  her  marriage  or  de- 
cease, I  will  that  the  aforesaid  farm  be  sold,  at  one  or  two 
years'  credit.  Item.  I  give  and  bequeath,  also,  to  my  be- 


OCTOBER  TERM,  1860.  189 

Owen  v.  Owen. 

loved  wife  Mary,  five  hundred  dollars  of  the  money  arising 
out  of  the  sale  of  said  farm."  By  a  subsequent  clause,  the 
testator  gives  as  follows:  "Item.  I  give  and  bequeath  to 
my  beloved  wife  Mary,  one  hundred  dollars  out  of  my  per- 
sonal estate." 

The  widow  died  intestate,  having  never  married  again. 
The  legacy  of  $500  bequeathed  to  her  out  of  the  money 
arising  from  the  sale  of  the  farm  is  now  claimed  by  her 
administrators  as  a  vested  legacy.  This  claim  is  resisted 
by  other  legatees  under  the  will,  on  the  ground  that  the 
legacy  is  contingent.  The  case  does  not  come  within  the 
operation  of  the  numerous  authorities  to  be  found  in  the 
books  on  the  subject  of  vested  and  contingent  legacies. 
Those  authorities  very  generally,  if  not  universally,  apply 
to  cases  where  the  bequest  depends  upon  some  future 
contingency.  And  the  real  question  in  such  cases  is, 
whether  the  language  of  the  will  imports  a  present  gift, 
to  be  paid  upon  the  happening  of  the  contingency,  or 
whether  the  gift  itself  depends  upon  the  contingency,  as 
where  a  legacy  is  given  to  a  man  when  he  attains  the  age 
of  twenty-one  years,  or  to  be  paid  at  twenty-one.  If  the 
language  imports  a  present  gift,  the  contingency  attaches 
only  to  the  time  of  payment,  and  the  legacy  is  vested. 
If,  on  the  other  hand,  the  gift  itself,  and  not  the  enjoy- 
ment only,  is  made  to  depend  upon  the  happening  of  the 
contingency,  the  legacy  is  contingent,  and  fails  upon  the 
deafh  of  the  legatee  before  the  happening  of  the  contin- 
gency. So  where,  as  in  this  case,  and  as  in  many  of  the 
reported  cases,  land  is  given  to  a  widow  for  life,  and 
ou  her  death  is  directed  to  be  sold,  and  out  of  the  proceeds 
of  the  sale  legacies  are  given  to  third  parties,  and  the 
legatees  die  before  the  tenant  for  life,  the  question  neces- 
sarily arises  whether  it  was  a  present  gift  to  be  received 
in  future,  or  whether  the  contingency  was  a  condition  of 
the  gift  itself.  In  all  such  cases  the  gift  may  depend  upon 
the  happening  of  the  contingency  in  the  lifetime  of  the 
tenant  for  life,  and  to  buch  cases  the  well-settled  rules  of 

VOL.  II.  II 


190  CASES  IN  CHANCERY. 

Owen  v.  Owen. 

construction  apply.  Now  it  is  obvious  that  there  is  no 
room  for  the  application  of  these  rules  of  construction  to 
the  present  case.  Here  the  land  is  given  to  the  widow  for 
life ;  on  her  death  the  land  is  to  be  sold,  and  her  legacy 
paid  out  of  the  proceeds.  The  death  of  the  legatee  is  the 
event  upon  which  the  laud  is  to  be  sold  and  the  legacy  paid. 
If  the  legacy  ever  vests,  it  must  vest  immediately  upon  the 
death  of  the  testator.  There  is  no  future  contingency  upon 
•which  it  can  by  possibility  vest,  for  the  legatee,  of  necessity, 
must  die  before  the  contingency  happens.  If  a  legacy  at  all, 
it  is  a  vested  legacy. 

The  real  question  in  the  case  would  seem  to  be,  whether 
the  testator  intended  to  give  the  legacy  of  $500  to  the 
widow,  except  in  the  event  of  her  marriage.  If  we  were 
at  liberty  to  substitute  conjecture  for  construction,  it  might 
be  suggested  as  very  probable  that  the  real  object  in  the 
mind  of  the  testator  in  giving  the  legacy  was  to  make  pro- 
vision for  the  wife  upon  her  marriage  in  lieu  of  the  use  of 
the  farm,  which  was  then  to  be  sold.  That  his  real  intention 
would  have  been  expressed  by  a  bequest  as  follows  :  "  I  give 
to  my  wife  Mary,  in  the  event  of  her  marriage,  $500  of  the 
moneys  arising  out  of  the  sale  of  said  farm."  But  we  are 
not  at  liberty  to  arrive  at  the  testator's  meaning  by  conjec- 
ture, much  less  to  supply  it  by  interpolation. 

If  the  legacy  had  been  given  upon  the  event  of  her 
marriage  alone,  it  would  have  been  clearly  contingent.  The 
gift  would  not  have  vested  except  in  the  event  of  her 
marriage.  But  the  legacy  is  given  upon  the  event  of  her 
marriage  or  death :  as  to  the  latter,  as  has  been  said,  there 
can  be  no  contingency.  The  only  mode  in  which  effect 
can  be  given  to  the  provision  of  the  will  is  to  hold  that 
the  legacy  to  the  widow  is  a  gift  in  presenti,  to  be  paid 
upon  the  sale  of  the  farm,  either  at  the  marriage  or  death  of 
the  widow. 

The  language  of  the  will  accords  with  this  conclusion. 
The  terms  of  the  bequest  import  a  present  gift.  The 
same  terras  are  employed  in  the  gift  of  the  legacy  of 


OCTOBER  TERM,  1860.  191 

Brown  v.  Lexington  and  Danville  Railroad  Co. 

$500  as  are  used  in  giving  to  the  widow  the  use  of  the  land 
and  the  legacy  of  $100  out  of  the  personal  estate.  The  land 
is  to  be  sold  at  the  death  or  marriage  of  the  widow,  but  the 
gift  is  immediate. 

The  legacy  to  the  widow  is  vested.     Her  administrators 
are  entitled  to  receive  it. 


JOHN  G.  BROWN  vs.  THE  LEXINGTON  AND  DANVILLE 
RAILROAD  COMPANY. 

1.  Where  it  appears  that  by  the  judgment  of  a  court  in  another  state, 
between  the  same  parties,  all  the  material  matters  of  equity  relied  upon 
by  the  complainant  in  his  suit  in  this  court  are  adjudicated  and  settled, 
the  bill  of  complaint  will  be  dismissed. 

2.  A  court  of  equity  will  not  permit  a  party  who  has  had  hia  rights 
fully  investigated  and  decided  in  a  court  of  equity  in  another  state  to 
avoid  a  final  decision  in  that  tribunal,  and  to  raise  for  re-investigation  the 
same  questions  on  the  same  facts. 

William  Halsted,  for  defendant, 
Strong,  for  complainant. 

THE  CHANCELLOR.  The  complainant's  bill  is  founded 
upon  a  contract  entered  into  'between  the  parties  in  the 
year  1857.  The  complainant  was  a  broker,  transacting 
business  in  the  city  of  New  York.  The  defendants  are  a 
corporation  chartered  and  conducting  railroad  operations 
in  the  State  of  Kentucky.  In  May,  1857,  the  defendants 
placed  in  the  hands  of  the  complainant,  to  be  sold,  ex- 
changed or  negotiated  for  their  benefit,  one  hundred  and 
twenty-four  bonds  of  the  company,  for  $1000  each.  For 
these  bonds  the  complainant  was  to  account  to  the  com- 
pany at  the  rate  of  sixty-five  dollars  on  the  hundred. 
After  satisfying  an  acceptance  for  $15,000,  made  by  the 


192  CASES  IN  CHANCERY. 

Brown  v.  Lexington  and  Danville  Railroad  Co. 

complainant,  the  balance  of  the  net  proceeds  was  to  be  de- 
posited in  the  Bank  of  America,  to  the  credit  of  the  presi- 
dent of  the  company.  Thirty-five  per  cent,  of  the  par 
value  of  the  bonds,  or  any  excess  which  the  complainant 
might  receive  over  sixty-five  per  cent.,  was,  by  the  terms  of 
the  agreement,  to  pay  the  complainant's  commissions  and  all 
expenses. 

On  the  fourth  of  August,  1857,  the  company,  by  a  letter 
of  attorney  of  that  date,  re-affirmed  their  contract  with  the 
complainant,  and  constituted  him  their  attorney  in  fact,  em- 
powering him,  among  other  things,  to  exchange  their  bonds 
for  real  estate  or  other  property,  to  sell,  exchange  or  mort- 
gage such  real  estate  so  as  to  convert  it  into  cash,  or  on  rea- 
sonable time,  and  to  control  such  real  estate  as  agent  or 
trustee  of  the  company. 

By  virtue  of  this  contract,  and,  as  the  bill  alleges,  by 
virtue  of  instructions  given  or  of  authority  conferred  by 
the  president  of  the  company,  the  complainant  disposed  of 
thirty-nine  of  said  bonds,  viz.,  twenty-three  in  purchase  of 
a  farm  at  Prospect  Plains,  with  the  stock,  farming  imple- 
ments and  growing  crops,  in  this  state;  nine  in  exchange  for 
real  estate  in  the  city  of  New  York,  five  in  purchase  of  an 
invoice  of  marble  at  San  Francisco,  one  delivered  to  coun- 
sel in  payment  for  bis  services,  leaving  one  not  clearly 
accounted  for.  The  remaining  eighty-five  bonds  passed 
into  the  hands  of  a  receiver,  appointed  by  the  Supreme 
Court  of  the  State  of  New-York,  upon  the  application  of 
the  company. 

In  the  month  of  December,  1857,  the  letter  of  attorney 
to  the  complainant  was  revoked,  and  in  January,  1858,  by 
an  injunction  issued  out  of  the  Supreme  Court  of  New  York, 
at  the  instance  of  the  company,  he  was  restrained  from  any 
further  sale  or  disposition  of  the  bonds. 

The  bill  charges  that  the  contract  between  the  parties 
was  violated  by  the  company,  and  claims  that,  by  virtue 
of  the  contract,  the  complainant  is  entitled  to  receive 
thirty-five  per  cent,  on  the  par  value  of  the  bonds  thus 


OCTOBER  TERM,  1860.  193 

Brown  v.  Lexington  and  Danville  Kail  road  Co. 

placed  in  his  hands,  which  would  or  might  have  been 
realized  by  the  complainant  but  for  the  illegal  interference 
of  the  company.  The  bill  further  claims  that  the  com- 
plainant was  entitled  to  hold  the  said  bonds  as  collateral 
security  for  acceptances  made  and  liabilities  incurred  by 
him  for  the  benefit  of  the  company,  which  are  still  out- 
standing against  the  defendant. 

The  bill  prays  that  an  account  may  be  taken  of  all  the 
transactions  between  the  parties  in  respect  to  their  said 
agreement,  that  the  company  may  be  decreed  to  pay  to 
the  complainant  what  is  justly  due  him,  and  that  the  de- 
fendants may  be  restrained  from  proceeding  at  law  against 
the  complainant. 

It  is  admittted  by  the  complainant's  bill,  and  established 
by  the  evidence  in  the  cause,  that  a  suit  was  instituted  by 
the  company  against  the  complainant  in  the  Supreme 
Court  of  New  York  in  relation  to  these  bonds,  and  a 
judgment  therein  recovered  against  the  complainant  prior 
to  the  commencement  of  this  suit.  It  becomes  material, 
therefore,  to  inquire  how  far  the  judgment  in  that  cause 
may  have  concluded  the  rights  of  the  parties  or  may  affect 
the  complainant's  title  to  relief  in  this  court. 

The  railroad  company,  by  their  complaint  in  that  cause, 
after  setting  out  the  contract  between  the  parties,  claimed 
from  the  defendant  sixty-five  dollars  on  the  one  hundred 
of  the  amount  of  the  bonds  disposed  of  by  Brown,  and 
that  he  should  surrender  the  residue  of  the  bonds  remain- 
ing undisposed  of,  or  pay  to  the  company  sixty-five  dol- 
lars on  the  one  hundred  on  account  thereof.  The  prayer 
of  the  complainant  was — (1)  that  the  defendant  should  be 
adjudged  to  deliver  to  the  company  the  bonds  retained 
by  him,  and  that  in  the  meantime  he  should  be  enjoined 
from  disposing  of  them  ;  (2)  that  the  property  taken  by 
Brown  for  the  bonds  disposed  of  by  him  should  be  dis- 
posed of  under  the  order  of  the  court,  and  the  proceeds 
thereof  applied  to  the  payment  of  sixty-five  per  cent,  of 
the  amount  of  the  bonds  disposed  of;  and  in  case  the  pro- 


194  CASES  IN  CHANCERY. 

Brown  v.  Lexington  and  Danville  Eailroad  Co. 

ceeds  of  the  sale  were  insufficient  for  that  purpose,  that 
the  company  should  have  judgment  against  the  defend- 
ant personally  for  the  deficiency,  and  that  the  plaintiff 
should  have  such  other  and  further  relief  in  the  premises 
as  might  be  agreeable  to  equity  and  good  conscience. 

By  his  answer  to  this  complaint,  Brown,  the  defendant, 
set  up  by  way  of  defence,  among  other  matters,  the 
powers  conferred  upon  him  by  the  company  as  their 
agent  and  trustee ;  the  exchange  of  the  bonds  for  real 
estate  in  pursuance  of  the  powers  conferred  ;  that  such 
investments  were  made  in  good  faith  and  with  the  knowl- 
edge and  approval  of  the  company ;  that  he  had  given 
letters  of  credit  to  the  company,  and  had  made  accept- 
ances for  them  to  a  large  amount,  which  were  still  out- 
standing; that  he  was  entitled  to  hold  the  bonds  placed 
in  his  hands  for  his  own  profit  and  indemnity  ;  that  the 
company  had  no  right,  without  his  assent,  to  revoke  his 
authority  and  discontinue  his  agency  until  his  charges 
against  the  company  were  satisfied ;  and  as  a  counter 
claim,  the  defendant  insisted  that  the  plaintiffs  were  in- 
debted to  him  in  a  large  amount  for  services  performed, 
for  commissions  on  said  bonds,  for  outstanding  accept- 
ances, and  for  damages.  Very  voluminous  evidence  was 
taken  by  the  parties,  which  has  also  been  used  by  consent 
in  this  case.  At  May  Term,  1859,  it  was  adjudged  by  the 
court  that  the  defendant  should,  upon  five  days'  notice, 
convey  to  the  receiver  the  farm  at  Prospect  Plains,  in  this 
state,  with  the  farming  tools,  furniture  and  personal 
property  purchased  by  the  defendant  with  the  plaintiff's 
bonds,  and  that  the  same  should  be  sold  by  the  receiver 
at  public  auction ;  that  upon  a  compliance  by  the  de- 
fendant with  this  order,  it  should  be  referred  to  a  referee 
to  ascertain  and  report  the  amount  to  be  allowed  to  the 
defendant  for  acceptauces  and  advances  made  by  him  for 
the  company,  and  that  the  receiver,  out  of  the  proceeds 
of  the  sale,  should  first  pay  to  the  defendant  what  should 
be  found  due  him  on  said  account  above  the  sum  due 


OCTOBER  TERM,  1860.  195 

Brown  v.  Lexington  and  Danville  Railroad  Co. 

from  him  to  the  plaintiffs  for  nine  bonds  not  invested  in 
real  estate;  that  he  should  pay  the  plaintiffs  sixty-five  per 
cent,  of  the  amount  of  thirty  bonds  of  the  plaintiffs,  ex- 
changed by  the  defendant  for  real  estate,  being  $19,500, 
with  interest  thereon  from  December  24th,  1827  ;  that  the 
balance  of  the  proceeds  of  such  sale,  if  any,  should  be  paid 
to  the  defendant,  and  that  the  eighty-five  bonds  remaining 
undisposed  of  in  the  hands  of  the  receiver  should  be  de- 
livered to  the  plaintiffs. 

It  is  evident,  from  this  statement  of  the  pleadings  and 
judgment  in  the  suit  between  the  parties  in  the  Supreme 
Court  of  New  York,  that  every  material  matter  of  equity 
relied  upon  by  the  complainant  in  this  cause,  was  relied 
upon  iu  that ;  that  every  claim  presented  in  this  case  was 
urged  in  that,  and  that  the  court  virtually  decided  all  the 
issues  made  in  this  cause,  so  far  as  the  complainant's  right 
to  an  account  is  concerned,  and  settled  the  whole  equity  of 
the  case. . 

It  is  true  that  that  judgment  was  not  carried  into  exe- 
cution, and  that  it  has  not  been  pleaded  in  this  case  as  a 
bar  to  the  complainant's  suit.  It  is,  nevertheless,  the 
judgment  of  a  court  having  jurisdiction  of  the  parties  and 
of  the  subject  matter  in  a  suit  between  the  parties  in  this 
cause,  upon  the  very  matters  now  in  issue  between  them, 
and  the  judgment  was  not  carried  into  execution  solely 
because  of  the  failure  of  the  defendant  to  comply  with 
the  order  of  the  court  to  convey  the  property  to  the  re- 
ceiver. The  question  was  one  peculiarly  proper  for  the 
cognizance  of  the  courts  of  the  State  of  New  York.  It 
grew  out  of  a  New  York  transaction.  The  contract  be- 
tween the  parties  was  made  there — the  bonds  were  nego- 
tiated there;  the  property  acquired  in  New  Jersey  formed 
but  a  part  of  a  very  extensive  transaction,  the  settlement 
of  which  by  the  courts  of  that  state  necessarily  involved 
all  the  material  questions  at  issue  between  the  parties. 
Aside,  therefore,  from  all  questions  as  to  the  conclusive 
effect  of  this  judgment  in  New  York,  I  am  clear  that  the 


196  CASES  IN  CHANCERY. 

Brown  v.  Lexington  and  Danville  Railroad  Co. 

judgment  in  that  case  ought  to  be  decisive  of  the  rights  of 
the  parties  here,  and  that  this  court,  sitting  as  a  court  of 
equity,  ought  not  to  permit  a  party,  who  has  had  his  rights 
fully  investigated  and  decided  in  a  court  of  equity  in  another 
state,  to  avoid  a  final  decision  in  that  tribunal,  and  to  raise 
the  same  questions  upon  the  same  facts,  and  to  ask  a  re-in- 
vestigation at  the  hands  of  this  court. 

But  it  is  urged,  on  the  part  of  the  complainant,  that  he 
was  prevented,  by  legal  proceedings  instituted  by  the  rail- 
road company  in  this  state,  from  complying  with  the  order 
of  the  Supreme  Court  of  New  York,  and  has  thus  been  de- 
prived of  the  opportunity  of  availing  himself  of  the  bene- 
fits of  that  decree.  Without  pausing  to  investigate  the 
validity  of  this  objection,  either  in  point  of  law  or  of  fact, 
assuming  it  to  be  true  and  well  founded,  has  the  defendant 
any  right  to  an  account  in  this  court  as  against  the  defend- 
ants? He  claims  to  be  an  agent  and  trustee  of  the  defend- 
ants, and,  as  such,  to  have  purchased  real  and  personal  es- 
tate for  their  benefit,  to  have  expended  large  sums  in  its 
improvement,  and  to  have  incurred  heavy  expenses  in  its 
management ;  that  the  defendants  are  seeking,  by  an  action 
at  law,  to  recover  the  bonds  paid  or  exchanged  by  him  for 
the  real  estate  thus  purchased,  and  that  he  is  entitled  to  an 
account  and  a  settlement  of  all  the  disbursements  and  ex- 
penses thus  made  and  incurred.  A  simple  statement  of  the 
facts  disclosed  by  the  pleadings  and  the  evidence  in  the 
case  will  show  the  grounds  of  the  complainant's  title  to  an 
account. 

In  May,  1857,  the  railroad  company  placed  one  hun- 
dred and  twenty-four  mortgage  bonds  of  the  company, 
for  $1000  each,  in  the  hands  of  the  complainant,  to  raise 
money  to  meet  the  immediate  and  pressing  necessities  of 
the  corporation.  It  is  obvious,  from  the  whole  evidence 
in  the  case,  that  the  design  of  the  company  was  to  con- 
vert them  into  cash  or  available  funds  as  speedily  as  pos- 
sible. To  this  end  the  complainant  was  authorized  to  sell 
or  negotiate  the  bonds,  or  to  purchase  real  estate  and  con- 


OCTOBER  TERM,  1860.  197 

Brown  v.  Lexington  and  Danville  Railroad  Co. 

vert  it  into  money.  The  only  limitation  imposed  was  that 
he  should  account  to  the  company  for  sixty-five  dollars  on 
the  one  hundred  for  all  the  bonds  disposed  of. 

He  continued  to  act  as  the  agent  of  the  corporation, 
with  power  to  execute  the  trust  reposed  in  him,  from 
May,  1857,  till  about  the  1st  of  January,  1858,  when  his 
agency  was  terminated,  and  eighty-five  bonds,  then  re- 
maining in  his  hands,  were  reclaimed  by  the  company. 
During  that  period  he  had  sold,  exchanged,  or  otherwise 
disposed  of  thirty-nine  bonds,  of  the  par  value  of  $1000 
each,  and  for  which  the  company  was  entitled,  by  virtue  of 
their  contract,  to  receive  sixty-five  per  cent.,  or  $25,350.  It 
is  not  pretended  that  the  complainant  has  ever  paid  the  com- 
pany the  value  of  a  single  bond,  or  that  the  company  have  ever 
realized  a  dollar  from  his  operations. 

Of  the  thirty-nine  bonds  disposed  of  by  the  complain- 
ant, nine  were  invested  in  real  estate  in  the  city  of  New 
York,  the  whole  of  which,  within  a  few  months  of  making 
the  investment,  was  sold  under  previous  mortgages,  and 
proved  insufficient  to  satisfy  them.  Twenty-three  of  the 
bonds  were,  on  the  29th  of  June,  1857,  invested  in  the 
purchase  of  the  farm  at  Prospect  Plains,  in  this  state,  and 
in  the  purchase  of  the  furniture,  stock,  farming  utensils 
and  growing  crops  thereon.  The  complainant  immedi- 
ately entered  into  possession  of  the  house  and  farm  thus 
furnished  and  stocked,  and  has  held  and  enjoyed  it  as  his 
own,  receiving  the  rents,  issues 'and  profits  from  that  day 
to  this.  In  May,  1857,  five  of  the  bonds  were  invested  in 
an  invoice  of  marble  in  California,  which  is  traced  into 
the  hands  of  the  complainant's  brother,  but  of  which  no 
account  has  been  rendered  to  the  defendants.  The  re- 
maining two  bonds  are  not  pretended  to  have  been  dis- 
posed of  in  pursuance  of  any  authority  conferred  on  the 
complainant  or  for  the  benefit  of  the  defendant.  It  is 
obvious,  then,  and  so  it  was  adjudged  by  the  Supreme 
Court  of  New  York,  that  the  complainant  is  lawfully  in- 
debted to  the  defendants,  and  that  he  can  have,  under  the 


198  CASES  IN  CHANCERY. 

Brown  v.  Lexington  and  Danville  Eailroad  Co. 

terms  of  his  contract,  no  claim  against  them  as  trustee 
for  the  management  of  the  real  estate.  No  matter  what 
may  have  been  the  disposition  of  that  real  estate,  the 
facts  will  not  warrant  calling  the  defendants  to  an  account. 
All  the  investments  in  personal  property  were  made 
prior  to  the  execution  of  the  letter  of  attorney  by  the  de- 
fendants and  were  unauthorized.  Giving  to  the  com- 
plainant the  full  benefit  of  his  allegation,  which  is  not 
distinctly  in  proof  in  the  cause,  that  the  title  to  the  farm 
in  question  has  been  decided  to  be  in  the  company,  and 
that  they  have  received  the  value  of  it,  it  does  not  mate- 
rially aid  the  complainant's  case  or  entitle  him  to  an 
account.  The  farm,  with  all  the  improvements  put  upon 
it  by  the  complainant,  is  of  far  less  value  than  the  amount 
which  the  defendants  were  entitled  to  receive  on  account 
of  the  bonds  expended  in  its  purchase.  The  farm,  there- 
fore, admitting  it  to  have  been  recovered  by  or  for  the 
benefit  of  the  defendants,  has  not  realized  to  them  sixty-five 
per  cent,  upon  the  amount  of  the  bonds  vested  in  its  pur- 
chase. Even  if  it  be  admitted  that  the  complainant  might  in 
equity  have  some  claim  to  compensation  for  the  manage- 
ment of  the  defendants'  land,  and  for  permanent  improve- 
ments made  upon  it,  he  is,  nevertheless,  indebted  to  the 
defendants  in  $5850,  with  interest,  for  the  amount  of  sixty- 
five  per  cent,  on  nine  bonds  of  the  defendants  not  invested 
in  real  estate  in  pursuance  of  his  contract.  This  sum  he 
is,  in  equity  and  by  the  express  judgment  of  the  Supreme 
Court  of  New  York,  bound  to  pay  before  he  is  entitled  to 
any  remuneration  for  his  services.  It  is  clearly  shown  by 
the  evidence  that  the  complainant  is  under  no  liability  for 
the  defendants ;  that  nothing  has  been  advanced  by  him, 
either  upon  his  letters  of  credit  or  his  acceptances,  for  the 
benefit  of  the  company,  and  that  all  his  acceptances  have 
been  taken  up  and  satisfied.  In  any  aspect  of  the  case 
the  complainant  is  not  entitled  to  an  account.  He  is  largely 
indebted  to  the  defendants.  He  has  no  claim  in  equity 
to  an  account  as  trustee.  Every  defence  which  he  may 


OCTOBER  TERM,  1860.  199 

Trenton  Water  Power  Co.  v.  Chambers. 

have  against  the  demand  of  the  defendants,  in  their  action  at 
law,  is  available  at  law  as  well  as  in  equity. 

The  injunction  heretofore  issued  against  the  defendants 
must  be  dissolved,  and  the  complainant's  bill  dismissed,  with 
costs. 


THE  TRENTON  WATER  POWER  COMPANY  vs.  ROBERT 
CHAMBERS. 

1.  In  practice,  commissioners  and  others  appointed  to  appraise  damages 
and  value  lands  taken  by  incorporated  companies,  by  force  of  their  char- 
ters, have  frequently,  if  not  uniformly,  united  the  value  of  the  land  and 
the  damages  in  the  same  sum,  without  discrimination. 

2.  The  better  practice  would  be  to  distinguish  the  value  of  the  land 
from  the  damages. 

3.  It  is  well  settled  that  the  appraisement  includes  prospective  dam- 
ages, resulting  naturally  and  directly  from  the  works  of  the  company,  for 
all  time  to  come. 

Gtimmere  and  Dayton,  for  complainants. 
y  for  defendant. 


THE  CHANCELLOR.  The  first  exception  to  the  master's 
report  is,  that  it  is  not  made  in  conformity  to  the  order  of 
reference. 

By  the  decretal  order  in  the  cause,  the  master  was 
directed  to  make  a  just  and  equitable  estimate  and  appraise- 
ment of  the  value  of  the  defendant's  lands  at  the  time  of 
their  being  taken  by  the  complainants,  and  of  the  dam- 
ages sustained  by  the  defendant  by  reason  of  the  taking 
of  the  said  lands.  The  master,  by  his  report,  states  as 
follows:  "I  do  estimate  the  value  of  the  lands  so  taken, 
ami  the  damages  sustained  by  reason  of  such  taking,  at 
the  time  of  such  taking,  at  the  sum  of  one  thousand  seven 
hundred  and  twenty  dollars."  The  master  has  reported 


200  CASES  IN  CHANCERY. 

Trenton  Water  Power  Co.  v.  Chambers. 

no  separate  estimate  of  the  value  of  the  lands  and  appraise- 
ment of  damages.  I  am  not  satisfied  that  this  is  a  material 
departure  from  the  requirements  of  the  order.  The  terms 
of  the  order  are  in  conformity  with  the  terms  of  the  charter 
of  the  company,  making  provision  for  compensation  to  the 
land-holder.  I  think  it  will  be  found  that  where  lands  have 
been  taken  by  condemnation,  for  public  use,  under  provisions 
of  charters  similar  to  the  present,  the  report  of  the  com- 
missioners appointed  to  value  the  land  and  appraise  the 
damages,  and  the  verdict  of  the  jury,  where  a  feigned  issue 
has  been  directed,  have  very  frequently,  if  not  uniformly, 
united  the  value  of  the  land  and  the  damages  in  the  same 
sum,  without  discrimination.  It  cannot  be  denied  that  this 
mode  of  confounding  the  value  of  land  taken  and  the  amount 
of  damages  sustained,  may,  as  in  fact  it  does,  in  this  case, 
create  serious  embarrassment  in  testing  the  propriety  and 
accuracy  of  the  master's  report.  The  better  practice  would 
certainly  be  to  distinguish  between  the  value  of  the  land  and 
the  damages. 

There  is  another  inaccuracy  in  the  report,  which,  if  it 
were  permitted  to  stand,  might  be  productive  of  future 
embarrassment.  The  order  directs  the  master  to  make 
an  estimate  and  appraisement  of  the  value  of  the  lands  at 
the  time  they  were  taken,  and  of  the  damages  sustained. 
The  master  reports  that  he  has  estimated  the  value  of  the 
lauds  taken,  and  the  damages  sustained  by  reason  of  such 
taking,  at  the  time  of  the  taking.  But  the  damages  appraised 
are  not  to  be  limited  to  the  time  of  the  taking.  It  is  well 
settled  I  hat  the  appraisement  includes  prospective  damages, 
resulting  naturally  and  directly  from  the  work  of  the  com- 
plainants, for  all  time.  Ten  Eyok  v.  The  Del.  and  Rai\ 
Canal  Co.,  3  Harr.  200 ;  Van  Schoick  v.  The  Del.  and  Ear. 
Canal  Co.,  Spencer  249 ;  Del.  and  Bar.  Canal  Co.  v.  Lee,  2 
Zab.  243. 

It  may,  perhaps,  be  inferred,  from  the  language  of 
another  part  of  the  report,  that  this  statement  is  a  mere 


OCTOBER  TERM,  1860.  201 


Durant  v.  Bacot, 


verbal  inaccuracy,  and,  as  such,  open  to  correction  and  ex- 
planation. 

The  next  ground  of  exception  is,  that  the  report  is  for 
a  larger  amount  than  is  warranted  by  the  evidence.  This 
exception  is  well  taken.  The  defendant's  land  has  been 
taken  by  condemnation,  without  his  consent,  for  the  use  of 
the  complainants.  He  is  entitled  to  receive  full  and  ade- 
quate compensation  for  the  land  and  for  his  damages.  But 
the  report  of  the  master  is  excessive  in  amount,  and  can- 
not be  sustained  by  any  fair  view  of  the  evidence.  The 
report  must  be  set  aside.  I  deem  this  a  case  peculiarly 
proper  for  the  consideration  of  a  jury,  although  the  matter 
was  originally  referred  to  a  master  by  consent  of  parties.  I 
will,  if  either  party  now  desires  it,  direct  an  issue  to  ascer- 
tain the  value  of  the  land  and  damages. 

Twenty  days  will  be  allowed,  within  which  the  parties 
may  make  their  election. 


DURANT  vs.  BACOT. 

1.  Where  a  mistake  has  occurred  in  the  sale  of  lands,  there  is  no  doubt 
of  the  power  of  a  court  of  equity  to  reform  the  conveyance. 

2.  But  when  a  deed  is  drawn  strictly  in  accordance  with  the  intention 
of  the  parties,  although  from  a  mistake  in  judgment  it  will  not  effect  ihe 
end  in  view,  there  is  no  case  presented  for  the  interference  of  the  court.. 


Weart  and  Bradley,  for  complainant. 
Zabriskie^  for  defendant. 

THE  CHANCELLOR.  On  the  19th  of  June,  1827,  Jolm 
Van  Vorst,  by  deed  of  that  date,  conveyed  to  William 
Durant  a  lot  of  salt  meadow,  60  feet  in  front  and  rear, 
and  100  feet  deep,  at  the  intersection  of  Warren  street 
with  the  turnpike  road  leading  from  Newark  to  Jersey 


202  CASES  IN  CHANCERY. 

Durant  v.  Bacot. 

City.  The  lot  is  described  as  "  beginning  at  the  north 
side  of  the  turnpike  road,  where  Warren  street,  in  the 
map  of  the  Jersey  Company,  would  intersect  said  road, 
and  extending  thence  west  along  the  turnpike  fifty  feet, 
and  north,  and  parallel  with  Warren  street,  one  hundred 
feet."  In  the  year  1830,  a  second  deed  was  executed  by 
Van  "Vorst  to  Durant  for  another  lot,  triangular  in  form, 
adjoining  the  first-named  lot  on  the  west,  fronting  twenty- 
six  feet  on  the  turnpike,  and  running  to  the  corner  of  the 
first  lot  in  the  rear. 

In  November,  1857,  the  complainant,  in  whom  the  title 
to  both  lots  is  vested,  filed  his  bill  against  the  heirs  of 
Van  Vorst  to  reform  the  deed  of  1830.  It  charges  that 
the  real  design  of  the  parties  in  making  the  second  con- 
veyance was  to  make  the  west  line  of  the  lot  strike  the 
turnpike  at  right  angles  ;  that,  from  a  misapprehension  at 
the  time  of  the  conveyance,  the  parties  supposed  that  a 
front  of  26  feet  on  the  turnpike  would  accomplish  that 
end,  whereas  it  required  an  additional  front  of  55  feet  on 
the  turnpike  to  accomplish  that  purpose.  It  asks  that  the 
deed  be  reformed  so  as  to  effectuate  the  intention  of  the  par- 
ties, and  that  the  defendants  be  decreed  to  convey  au  addi- 
tional front  of  29  feet  on  the  turnpike. 

Of  the  power  of  the  court  to  reform  the  contract,  there 
is  no  question.  1  Spence's  Eq.  Jar.  633  ;  Adams'  Eg.  168  ; 
1  Sugden  on  Yen.  158  ;  1  Story's  Eq.,  §  152  ;  Chelwood  v. 
Brittan,  1  Green's  Ch.  438 ;  MoKelway  v.  Armour,  2  Stockt. 
115. 

Does  the  complainant,  by  his  evidence,  show  a  case  which 
calls  for  or  authorizes  the  interference  of  the  court?  If  so, 
is  the  remedy  lost  by  lapse  of  time? 

The  bill  charges  that  the  original  deed  of  1827  was 
made  under  the  impression  that  Warren  street  intersected 
the  turnpike  at  right  angles,  and  that  the  deed  was  in- 
tended to  convey  a  rectangular  lot;  that,  contrary  to 
such  impression,  it  was  found  that  the  roads  intersected 
each  other  at  an  acute  angle,  and  that  the  lines  of  the  lot 


OCTOBER  TERM,  1860.  203 


I  Ml  rant  V.  Bacot. 


were  consequently  so  oblique  that  a  house  erected  on  the 
entire  front  of  the  lot,  with  its  side  lines  at  right  angles 
to  the  road,  would  unavoidably  project  upon  the  adjoining 
lands  of  the  grantor,  and  that  the  buildings  of  the  grantee 
had  by  mistake  been  erected  in  part  on  the  lands  of  the 
grantor. 

To  remedy  this  difficulty,  and  with  the  view  of  making 
the  western  line  of  the  lot  perpendicular  to  the  road,  the 
bill  alleges  that  the  second  deed  was  executed,  but  that 
the  deed,  as  drawn  and  executed,  does  not  accomplish  the 
object  and  intention  of  the  parties.  This  view  of  the 
case  is  not  sustained  by  the  evidence.  The  angle  formed 
by  the  intersection  of  the  street  being  an  acute  angle,  it 
is  obvious  that  if  the  grantee  occupied  the  entire  front 
with  his  building,  and  extended  it  in  the  rear  at  right  an- 
gles to  the  street,  the  rear  of  the  building  would  not  oc- 
cupy the  land  of  Van  Vorst  on  the  west  line,  but  would 
encroach  upon  Warren  street  on  the  east  line.  To  avoid 
this  difficulty,  or  possibly  from  a  mere  mistake  of  loca- 
tion, Durant  located  his  buildings  too  far  west,  so  that  the 
front  of  his  building  upon  the  turnpike  was  26  feet  west 
of  his  true  line  and  upon  the  land  of  Van  Vorst.  It  be- 
came necessary,  therefore,  for  him  to  protect  his  building 
to  acquire  more  front  upon  the  turnpike,  and  it  seems 
most  probable  that  this  was  the  real  design  of  the  second 
pvirehase.  The  difficulty  doubtless  arose  from  the  lot  not 
being  square,  but  the  primary  design  of  the  change  was 
not  so  much  to  make  the  lines  rectangular  as  to  acquire 
title  to  the  ground  occupied  by  the  buildings.  This  I 
deem  a  fair  result  of  the  evidence  in  the  case.  So  far 
from  the  design  of  the  second  conveyance  being  to  make 
the  Hue  of  the  lot  rectangular  with  the  street,  it  is  obvi- 
ously drawn  upon  the  assumption  that  the  west  line  of 
the  original  lot  was  at  right  angles  to  the  street,  and  that 
the  additional  purchase  made  the  west  line  oblique.  It 
is  for  a  half  lot,  beginning  on  the  turnpike  twenty-six 
feet  from  the  west  line  of  Durant's  lot,  as  formerly  con- 


204  CASES  IN  CHANCERY. 

Durant  v.  Bacot. 

veyed,  running  thence  (not  at  right  angles)  but  "  diago- 
nally, to  the  rear  of  said  lot,  forming  a  triangle,  the  base 
of  which,  lying  along  the  line  of  said  Charles'  lot,  is  one 
hundred  feet  deep  from  said  turnpike  road,  and  the  per- 
pendicular along  said  road  twenty-six  feet."  Now  every 
phrase  and  expression  in  that  description  is  applicable,  and 
only  applicable  to  a  lot  whose  east  line,  being  identical  with 
the  west  line  of  the  old  lot,  is  at  right  angles  to  the  street, 
and  whose  west  line  is  oblique.  Every  expression  is  repug- 
nant to  the  idea  of  squaring  the  lot  by  making  the  west  line 
intersect  the  street  at  right  angles. 

But  assuming  that  the  real  and  sole  design  of  the 
second  purchase  was  to  make  the  lot  rectangular,  let  us  see 
how  the  case  stands  upon  the  evidence.  John  J.  Durant 
says  the  lot  turned  out  not  to  be  square ;  Van  Vorst  was 
willing  to  make  it  square  ;  my  father  was  anxious  to  have 
it  square  ;  Mr.  Van  Vorst  said  he  would  sell  enough  to 
make  it  square;  my  father  said  he  would  buy  enough  to 
make  it  square.  Mr.  Cassedy,  the  counsel  under  whose 
direction  the  deed  was  drawn,  says — I  drew  the  deed  from 
the  orders  I  got  from  them  ;  we  all  three  believed,  as  I 
now  recollect,  that  that  would  make  the  western  line  of 
the  lot  at  right  angles  with  the  turnpike;  I  recollect  Van 
Vorst  asked  how  many  feet,  it  would  take  to  square  it  ; 
Durant  said  about  26  feet,  the  number  of  feet  in  the  deed. 
And  on  -cross-examination,  he  says — "Durant  said  it 
would  take  26  feet  along  the  turnpike  to  square  it  out ;  I 
think  both  parties  said  that  would  square  it ;  I  think  Van. 
Vorst  said,  '  how  much  do  you  want?'  Duiant  said 
'26  feet;'  I  think  that  will  square  it  out;  when  I  say 
26  feet,  I  don't  mean  to  say  that  I  recollect  that  he  said 
those  words,  but  I  mean  to  say  he  called  for  the  quantity 
named  in  the  deed."  Now  it  is  evident,  from  this  testi- 
mony, that  there  is  no  mistake  in  drawing  the  deed.  It 
was  drawn  strictly  in  accordance  with  instructions  given. 
Durant  wanted  26  feet;  Van  Vorst  agreed  to  sell  26  feet; 
he  received  pay  for  26  feet;  he  actually  conveyed  26  feet. 


OCTOBER  TERM,  1860.  205 

Emans  v.  Wortman. 

There  is  no  mistake  in  the  deed,  and  no  room  for  the  reform- 
ation of  this  instrument.  The  whole  mistake  was  in  the 
judgment  of  the  parties,  or  of  Mr.  Durant  himself,  as  to  the 
effect  of  the  purchase  upon  the  shape  of  his  lot.  It  is  clearly 
not  a  case  for  the  interference  of  the  court. 
The  bill  must  be  dismissed. 

AFFIRMED,  2  McCar.  411. 


EDWIN  EMANS  and  ELIZABETH,  his  wife,  vs.  JOSEPH  W. 
EMANS  and  PETER  WORTMAN. 

1.  If  a  bill  unite  a  demand  of  several  matters  of  distinct  natures,  against 
different  defendants,  it  is  demurrable  for  multifariousness. 

2.  So,  if  a  joint  claim  against  two  defendants  is  joined  in  the  same  bill 
with  a  separate  claim  against  one  of  them  only,  either  or  both  of  the 
defendants  may  demur  for  multifariousness. 


Dalrimple  and  Little,  for  defendants. 
Vanalta,  for  complainants. 

THE  CHANCELLOR.     The  complainants  in  this  bill  set  up 
two  distinct  and  independent  claims  or  grounds  of  relief. 

1.  They  seek  to  compel    the  specific   performance  of  an, 
award  in  favor  of  the  complainants,  made  in  pursuance  of  an 
agreement  for  submission  to  arbitration,  entered  into  between 
the  complainants  and  Joseph  \V.  Emans,  oue  of  the  defend- 
ants. 

2.  To  compel  the  defendants  to  account  for  and  pay  to  the 
complainants  the  value  of  the  equal  half  part  of  a  farm  of 
200  acres,  conveyed  by  the  wife  of  the  complainant  and  the 
defendant,  Joseph  \V.  Emans,  to  the  other  defendant,  Peter 
Wortman,  by  deed  executed  and  delivered  the  29th  of  Octo- 
ber, 1853. 

VOL.  n.  N 


206  CASES  IN  CHANCERY. 

Emans  v.  Wortman. 

A  separate  demurrer  is  filed  by  each  of  the  defendants. 

The  bill  is  clearly  demurrable  for  raultifariousness,  on  two 
grounds. 

1.  It  unites  a  demand  of  several  matters  of  distinct  natures, 
against  different  defendants.  The  refusal  by  Emans  to  per- 
form the  award  against  him,  and  the  refusal,  by  Emans  and 
Wortman  combined,  to  pay  the  complainant's  wife  the  value 
of  her  share  of  the  farm,  are  totally  distinct  matters,  having 
no  connection  with  or  dependence  on  each  other. 

The  submission  to  arbitration  grew  out  of  the  alleged  ine- 
quality and  unfairness  of  a  partition  between  the  complain- 
ant's wife  and  Joseph  W.  Emans,  with  which  the  sale  and 
conveyance  to  Wortman  was  in  some  wise  connected.  But 
the  refusal  of  Wortman  to  pay  the  stipulated  price  of  that 
land,  or  the  fraudulent  combination  of  Wortman  and  Emans 
to  deprive  her  of  her  fair  share  of  the  consideration  for  the 
conveyance,  formed  no  part  of  the  partition,  and  was  in  no 
wise  involved  in  the  subject  matter  of  the  arbitration.  The 
submission  relates  solely  to  the  inequality  of  the  partition 
between  Elizabeth  and  Joseph  W.  Emans.  The  refusal  of 
Wortman  to  pay  the  price  of  land  conveyed  by  them,  neither 
produced  nor  contributed  to  that  inequality.  Even  against 
the  same  defendant,  a  claim  for  the  specific  perform- 
ance of  an  agreement  to  submit  to  arbitration,  and  a 
claim  for  the  recovery  of  the  value  of  land  fraudulently 
withheld,  cannot  be  united  in  the  same  bill.  It  is  a  mis- 
joinder  of  different  causes  of  action,  which  cannot  prop- 
erly be  litigated  in  the  same  suit.  Boyd  v.  Hoyt,  5  Paige 
79 ;  Story's  Eq.  PL,  §  271,  530 ;  1  DanieWs  Ch.  Prac.  383, 
393,  395. 

Again,  admitting  that  the  defendants  are  properly 
joined  in  that  part  of  the  bill  which  relates  to  the  price 
of  land,  Wortman  has  no  interest  in  the  subject  matter 
of  that  part  of  the  bill  which  relates  to  the  specific  per- 
formance of  the  award.  He  is  no  party  to  the  submis- 
sion or  to  the  award.  The  bill  prays  no  discovery,  and 


OCTOBER  TERM,  1860.  207 


Chubb  v.  Feckham. 


asks  no  relief  against  him  on  that  ground.  He  has  no  con- 
ceivable connection  with  that  part  of  the  complainants'  case. 
If  a  joint  claim  against  two  defendants  is  joined  in  the  same 
bill  with  a  separate  claim  against  one  of  them  only,  either  or 
both  of  the  defendants  may  demur  for  multifariousness. 
Ward  v.  The  Duke  of  Northumberland  et  al.,  2  Anslruther 
469 ;  Boyd  v.  Hoyt,  5  Paige  79 ;  Swift  v.  Eclcford,  6  Paige 
22  ;  1  DanielVs  Ch.  Pr.  383,  395. 

To  sustain  a  demurrer  to  a  bill  for  multifariousness  against 
several  defendants,  it  is  not  necessary  that  the  defendant  de- 
murring should  so  far  answer  the  bill  as  to  deny  the  ordinary 
general  charge  of  combination.  Mitford's  PL,  by  Jeremy,  181, 
and  note  b  ;  Brooks  v.  Lord  Whitworth,  1  Madd.  86,  (1st  Am. 
ed.  57;)  Salvage  v.  Hyde,  5  Madd.  138. 

The  specific  charge  of  fraudulent  combination,  made  in 
the  complainants'  bill  in  this  case,  applies  only  to  the  second 
ground  of  relief. 

It  is  not  a  case  in  which  the  complainants'  bill  can  be 
amended.  Johnson  v.  Anthony,  2  Molloy  373;  Boyd  v.  Hoyt, 
5  Paige  79 ;  Swift  v.  JEckford,  6  Paige  22. 

The  demurrer  must  be  allowed,  and  the  complainant's  bill 
dismissed. 


CHUBB  vs.  PECKHAM  and  others. 

1.  Courts  of  equity  may,  in  the  exercise  of  a  sound  discretion,  refuse  to 
decree  the  specific  performance  of  a  hard  bargain. 

2.  A  father,  having  conveyed  his  entire  estate  to  his  children,  upon 
their  stipulating  to  provide  for  their  parents  a  comfortable  support  and 
maintenance  suitable  to  their  condition,  wherever  they  or  either  of  them 
might  choose  to  reside,  a  specific  performance  of  the  contract  was  decreed 
in  his  favor. 


208  CASES  IN  CHANCERY. 

Chubb  v.  Peckham. 

3.  It  is  no  defence  to  such  suit  that  the  property  conveyed  was  totally 
inadequate  to  the  support  of  the  parents. 

4.  Evidence  of  a  cotemporaneous  parol  agreement  is  inadmissible  to 
alter  the  terms  of  a  written  contract. 


Hansom,  for  complainant. 

THE  CHANCELLOR.  On  the  7th  of  April,  1855,  William 
Chubb  and  Lydia,  his  wife,  by  deed  of  that  date,  con- 
veyed to  their  two  children,  William  F.  Chubb  and  Emma 
Peckham,  a  small  farm,  in  the  county  of  Somerset,  con- 
taining about  46  acres  of  land. 

By  an  agreement  of  even  date  with  the  deed,  under  the 
hands  and  seals  of  their  children,  made  between  the 
children,  of  the  one  part,  and  their  parents,  of  the  other, 
the  children  agreed,  in  consideration  of  the  conveyance, 
to  provide  for  the  support  and  maintenance  of  their 
parents,  and  each  of  them,  in  a  comfortable  manner,  to 
provide  and  furnish  each  of  them  with  proper  and  suita- 
ble clothing,  food,  medicine  and  medical  attendance,  when 
sick,  and  to  find  a  comfortable  place  to  live  in — all 
to  be  according  to  their  age  and  situation  in  life — for  and 
during  their  natural  lives  and  the  life  of  the  survivor  of 
them.  The  children  further  agreed  to  accept  the  title 
which  the  father  had  in  the  premises ;  and  in  case  of  any 
adverse  claim  of  title,  to  be  at  the  expense  of  defending 
the  title  which  they  thus  acquired. 

This  bill  is  filed  by  the  father  against  the  children,  and 
charges  a  failure  upon  their  part  to  perform  the  contract, 
an;l  asks  either  that  the  contract  be  rescinded,  and  the 
lands  re-conveyed  to  the  complainant,  or  that  a  specific 
performance  be  decreed. 

A  decree  pro  confesso  is  taken  against  the  son.  The 
daughter  alone  answers.  She  admits  the  contract,  alleges 
that  they  took  the  title  at  her  father's  request,  and  solely 
for  the  purpose  of  aiding  her  aged  parents ;  that  she  has 
received  nothing  whatever  from  the  farm  ;  that  its  entire 
proceeds,  together  with  considerable  sums  advanced  by 


OCTOBER  TERM,  1860.  209 

Chubb  v.  Peckhara. 

herself,  have  been  appropriated  to  the  support  of  her 
parents ;  that  at  the  time  of  the  contract  it  was  under- 
stood and  agreed  that  the  father  should  remain  upon  the 
farm,  and  assist  in  its  cultivation,  until  a  sale  could  be 
effected  ;  that  the  proceeds  of  the  farm,  and  the  limited 
means  of  the  defendant,  are  utterly  inadequate  to  support 
her  parents  elsewhere  than  on  the  farm,  and  with  their 
assistance.  She  proffers  herself  ready  and  willing  to  re- 
convey  the  land,  if  the  sums  she  has  advanced  under  the 
contract  are  repaid  to  her. 

The  evidence  in  the  cause  shows  that  the  farm  was  con- 
veyed to  the  defendants,  not  at  their  request,  but  at  the 
solicitation  of  the  complainant,  and  that  the  title  was  re- 
luctantly accepted  by  Mrs.  Peckham,  the  daughter;  that 
she  has  derived  no  benefit  from  it,  but  that  the  contract 
into  which  she  entered  upon  taking  the  title  has  involved 
her  in  serious  trouble  and  pecuniary  loss.  The  evidence, 
moreover,  tends  to  confirm  the  allegation  of  the  answer, 
that  she  accepted  the  title,  and  entered  into  the  contract 
for  her  parents'  support  upon  the  faith  of  a  parol  agree- 
ment, cotemporaneous  with  the  written  contract,  that  her 
father  would  remain  upon  the  farm,  and  assist  in  its  cul- 
tivation until  it  could  be  advantageously  sold,  and  the 
proceeds  applied  to  his  support,  and  the  support  of  his 
wife,  at  such  place  as  they  might  choose  to  reside.  This 
evidence,  however,  is  inadmissible  to  relieve  her  from  the 
obligation  of  the  written  contract.  It  is  in  direct  conflict 
with  the  express  terms  of  her  written  engagement,  by 
which  it  is  stipulated  that  the  parents,  or  either  of  them, 
should  be  at  liberty  to  reside  in  the  city  of  New  York,  or 
elsewhere.  Evidence  of  a  cotemporaneous  parol  agree- 
ment is  inadmissible  to  alter  the  terms  of  the  written  con- 
tract. 

However  unfortunate  or  oppressive  may  be  its  terms,  the 
parties  must  abide  by  their  engagement  as  it  is  written. 

The  contract  cannot  be  rescinded,  or  a  re-conveyance 
directed,  even  by  the  consent  of  the  defendants.  The 


210  CASES   IN  CHANCERY. 

Chubb  v.  Peckham. 

wife  of  the  complainant  joined  in  the  conveyance,  and  the 
contract  of  the  grantees  is  for  her  maintenance  as  well  as 
that  of  her  husband.  Her  rights  are  to  be  protected.  She 
is  not  a  party  to  the  suit.  She  does  not  ask,  and  the  evi- 
dence warrants  the  belief  that  she  does  not  desire  a  dissolu- 
tion of  the  contract.  She  resides  upon  the  farm  with  her 
son,  and  is  supported  by  her  own  labor  and  the  assistance  of 
her  children.  The  husband  and  wife  do  not  live  together. 
The  complainant  contributes  nothing  to  her  support.  His 
interest  in  the  land  has  been  sold,  and  to  order  a  re-convey- 
ance might  strip  both  parties  of  their  means  of  support,  and 
must  of  necessity  be  prejudicial  to  the  rights  and  interest  of 
the  wife.  This  consideration  is  decisive  against  rescinding 
the  contract  for  her  support,  and  ordering  a  re-conveyance 
of  the  land. 

There  must  be  a  decree  for  a  specific  performance. 
Courts  of  equity  may,  in  the  exercise  of  a  sound  discre- 
tion, refuse  to  decree  the  specific  performance  of  a  hard 
bargain. 

But  this  is  not  a  case  for  the  application  of  the  doctrine, 
nor  for  the  exercise  of  such  discretion.  The  father  con- 
veyed his  entire  estate  to  his  children,  upon  their  stipu- 
lating to  provide  for  their  parents  a  comfortable  support 
and  maintenance  suited  to  their  condition,  wherever  they 
or  either  of  them  might  choose  to  reside.  It  is  no  answer 
to  a  prayer  for  specific  performance  that  the  property  con- 
veyed is  of  little  value  and  totally  inadequate  to  the  sup- 
port of  the  parents  in  the  city  of  New  York,  or  elsewhere 
than  in  the  country.  That  was  a  proper  subject  for  con- 
sideration by  the  parties  when  the  contract  was  entered 
into.  But  having  been  made  voluntarily  and  in  good 
faith,  the  parents  are  entitled  to  their  support  at  the  hands 
of  the  grantees  so  long  as  the  avails  of  the  property  con- 
veyed or  the  means  of  the  children  will  suffice  for  that 
purpose. 

There  must  be  a  decree  for  a  specific  performance  and 
a  reference  to  a  master  to  ascertain  and  report  what  would 


OCTOBER  TERM,  1860.  211 

Brace  v.  Gale. 

be  a  suitable  provision,  weekly  or  otherwise,  for  the  com- 
fortable support  and  maintenance  of  the  complainant,  and 
also  of  his  wife,  according  to  the  terms  and  provisions  of  the 
contract. 


BRUCE  and  COOK  vs.  GALE  and  others. 

Where  a  cause  is  settled  by  the  parties  out  of  court,  without  any  agree- 
ment as  to  the  disposition  of  the  suit  or  as  to  costs,  neither  party  is  entitled 
to  costs  against  his  adversary. 

Bill  to  set  aside  judgment  at  law  as  fraudulent  against  a 
subsequent  execution  creditor,  and  for  an  injunction  to  re- 
strain a  sale  of  the  debtor's  property  by  virtue  of  the  execu- 
tion alleged  to  be  fraudulent.  No  plea,  answer,  or  demurrer 
was  filed.  By  an  arrangement  between  the  parties,  the  com- 
plainants' claim  was  satisfied,  upon  his  consenting  that  the 
sheriff  should  proceed  to  a  sale  under  the  first  execution. 
No  agreement  was  made,  and  nothing  was  said  as  to  the  dis- 
position of  the  suit  in  chancery,  or  as  to  the  costs  therein. 

The  question  is  now  submitted  without  argument,  whether 
the  complainant  is  entitled  to  costs. 

Vanatta,  for  complainants. 

BY  THE  CHANCELLOR.  The  rule  is  well  settled  at  law 
that,  where  the  parties  to  a  suit  make  a  settlement  between 
themselves  out  of  court  without  reference  to  costs,  each  party 
shall  pay  his  own  costs.  Anderson  v.  Exton,  1  Smith  177; 
Den  v.  PiJcock,  7  Halst.  363. 

The  rule  is'the  dictate  of  common  sense,  and  is  both  just 
and  reasonable.  There  is  no  reason  why  it  should  not  be 
observed  at  well  in  equity  as  at  law. 

Iii  Eastburn   v.  Kirk,  2  Johns.  Ch.  R.  317,  where  the 


212  CASES  IN  CHANCERY. 

Hansom  v.  Stonington  Savings  Bank. 

cause  had  been  settled  between  the  parties  upon  certain 
terms,  one  of  which  was,  that  the  question  of  costs  should 
be  submitted  to  the  Chancellor,  the  court  refused  to  decide 
the  mere  question  of  costs,  but  left  each  party  to  pay  his 
own  costs. 

Neither  party  is  entitled  to  costs  against   his  adversary. 


KANSOM  vs.  THE  PRESIDENT,  DIRECTORS,  AND  COMPANY 
OF  THE  STONINGTON  SAVINGS  BANK  and  others. 

1.  A  corporation  aggregate  must  answer  under  the  seal  of  the  corporation. 

2.  They  may  adopt  and  use  any  seal  pro  hae  vice. 

3.  If  the  seal  is  dispensed  with,  it  should  be  by  leave  of  the  court  pre- 
viously obtained,  and  for  good  cause  shown. 


This  was  a  motion  to  suppress  answer. 
Ransom,  for  motion. 
Gilchrist,  contra. 

THE  CHANCELLOR.  The  defendants,  the  -Stouington 
Savings  Bank,  claiming  to  be  a  body  corporate  created 
by  the  laws  of  the  State  of  Connecticut,  filed  a  paper  pur- 
porting to  be  an  answer  to  the  complainant's  bill  not 
under  their  corporate  seal.  The  paper  was  signed  by 
counsel,  and  verified  by  the  oath  of  the  secretary  of  the 
corporation  in  the  usual  form.  An  affidavit  has  also  been 
made  by  the  secretary  of  the  company  and  filed,  stating  that 
the  bank  has  no  corporate  seal.  The  co-mplaiuaut's  counsel 
moves  to  suppress  the  answer  as  irregular. 

A  corporation  aggregate  answers  under  the  seal  of  the  cor- 
poration. Cooper's  Eq.  PI.  325 ;  Mi/ford's  PI.  9  ;  Hex  v. 
Windham,  Cowp.  377;  Story's  JEq.  PL  874;  1  Vern.  117; 
Angell  &  Ames  on  Corp.,  §  665  ;  1  Newland's  Ch.  Pr.  131 ; 
1  Daniel? 8  Ch.  Pr.  876,  note  1 ;  3  Ho/man's  Ch.  Pr.  239. 


OCTOBER  TERM,  1860.  213 

Ransom  v.  Stonington  Savings  Bank. 

The  practice  is  iii  accordance  with  the  ancient  though  some- 
what obsolete  rule  of  the  common  law,  that  a  corporation, 
being  an  invisible  body,  acts  and  speaks  only  by  its  common 
seal.  1  Bla.  Com.  475. 

If  the  uniform  practice  of  the  court  in  this  particular  is  de- 
parted from,  and  the  use  of  the  seal  dispensed  with,  it  should 
be  by  leave  of  the  court  previously  obtained  and  for  good 
cause.  The  affixing  of  the  corporate  seal  is  the  usual  mode 
of  authentication,  and  affords  the  best  evidence  that  the  paper 
purporting  to  be  an  answer  is  in  fact  the  answer  of  the  cor- 
poration. As  the  answer  now  stands,  there  is  no  evidence 
whatever  that  it  was  ever  authorized  or  adopted  by  the  cor- 
poration. The  presumption,  indeed,  is  the  other  way  j  for 
the  caption  of  the  answer  states  that  it  is  under  the  common 
seal  of  the  corporation,  when,  in  fact,  it  is  not  so  authentica- 
ted, thus  affording  a  presumption,  at  least,  that  it  was  never 
adopted  as  their  answer. 

The  fact  that  the  corporation  have  no  common  seal  affords 
no  ground  for  relaxing  the  practice.  It  is  an  inseparable  in- 
cident of  every  corporation  that  they  may  have  a  common 
seal,  and  make,  alter  and  renew  the  same  at  pleasure.  The 
cose  of  Button's  Hospital  10  Coke  30  C;  Angell  &  Ames  on 
Corp.,  §  217. 

They  may  use  and  adopt  any  seal  pro  hac  vice.  It  may  be 
a  bit  of  paper  attached  by  wafer,  without  any  impression  in- 
dicative of  a  common  seal  of  a  corporation.  Milldam  Foun- 
dry v.  Hovey,  21  Pick.  417. 

If  any  seal  whatever  is  attached  to  the  answer  by  the  au- 
thority of  the  corporation  it  becomes  their  seal,  and  if  the  an- 
swer is  verified  in  usual  form  by  the  signature  of  an  officer  of 
the  corporation,  his  affidavit  that  the  seal  so  affixed  is  the 
seal  of  the  corporation,  and  was  affixed  by  authority  of  the 
corporation,  the  answer  upon  its  face  purports  to  be  and  ia 
under  the  corporate  seal. 

The  motion  is  allowed,  with  costs. 


214  CASES  IN  CHANCERY. 


Brooks  v.  Lewis. 


BROOKS  and  KENDLE  vs.  LEWIS  and  others. 

On  bills  to  restrain  the  execution  of  process  or  the  performance  of  official 
acts  the  sheriff  is  made  a  party,  as  the  design  of  the  injunction  is  to  re- 
strain him  from  acting ;  but  where  no  relief  is  prayed,  and  no  decree 
asked  against  the  officer,  it  is  not  necessary,  nor  usually  expedient,  for  the 
sheriff  to  answer.  

S.  A.  Allen,  for  defendants,  in  support  of  motion. 
J.  Mulford  and  J.  Wilson,  contra. 

THE  CHANCELLOR.  The  injunction  in  this  cause  issued 
to  restrain  the  sheriff  of  the  county  of  Salem  from  delivering 
a  deed  to  one  of  the  defendants,  in  pursuance  of  a  sale  made 
by  him  by  virtue  of  a  writ  of  fieri  facias  issued  out  of  the 
court  for  the  sale  of  mortgaged  premises.  The  material  alle- 
gations of  the  bill  which  induced  the  allowance  of  the  injunc- 
tion are,  that  there  were  but  few  persons  present  at  the  sale; 
that  the  terms  of  sale  were  unusual  and  hard  ;  that  the  prop- 
erty was  cried  on  the  last  bid  for  a  very  short  time,  and  was 
struck  off  without  a  fair  opportunity  of  further  bidding  ;  that 
the  property  was  sold  at  a  great  undervalue,  and  that  a  per- 
son was  present  at  the  sale  prepared  to  bid  §500  more  for  the 
property  than  the  price  at  which  it  was  struck  off,  and  has 
since  the  sale  offered  that  advance,  which  was  refused  by  the 
purchaser,  who  asked  $7000  for  the  property,  and  refused 
to  sell  it  for  less  than  that  sum. 

The  injunction  was  granted  upon  the  ground  that  the 
sale  was  unfairly  conducted ;  that  the  property  was  struck 
off  at  an  undervalue  without  a  fair  opportunity  afforded 
for  further  bidding,  and  that  the  facts  warranted  the  be- 
lief that  a  higher  price  would  be  realized  upon  a  re-sale. 

All  the  material  charges  of  the  bill  are  explicitly  and 
fully  denied  by  the  answers  of  the  defendants.  As  the 


OCTOBER  TERM,  1860.  215 

Boston  Franklinite  Co.  v.  New  Jersey  Zinc  Co. 

case  now  stands  upon  the  answers,  there  is  no  ground  what- 
ever for  the  continuance  of  the  injunction. 

An  answer  is  filed  by  the  sheriff.  This  was  unnecessary. 
In  all  hills  to  restrain  the  execution  of  process  or  the  per- 
formance of  official  acts;  the  sheriff  is  made  a  party,  as  the 
design  of  the  injunction  is  to  restrain  him  from  acting,  and 
the  writ  is  directed  to  him.  But  usually,  no  relief  is  prayed, 
and  no  decree  asked,  against  the  officer.  Though  he  is  at 
liberty  to  answer,  and  in  some  cases  it  may  be  proper  for  him. 
to  do  so,  yet  it  is  not  necessary,  nor  usually  expedient.  The 
sheriff  lias  no  interest  in  the  controversy  ;  his  rights  are  not 
to  be  affected  by  it,  and  it  is  not  proper  that  he  should  be 
put  to  answer,  or  subjected  to  expense  in  a  controversy  in 
which  his  official  acts  alone  are  called  in  question,  at  the 
instance  of  third  parties.  If  the  sheriff's  statement  is  deemed 
material  for  the  interests  of  the  defendants,  it  may  be 
appended  as  an  affidavit  to  the  answer,  to  be  used  on  the 
motion  to  dissolve,  or  his  testimony  may  be  taken  by  leave 
of  the  court,  in  the  progress  of  the  cause. 

The  injunction  is  dissolved,  with  costs. 


THE  BOSTON  FRANKLINITE  COMPANY  vs.  THE 
JERSEY  ZINC  COMPANY. 

1.  The  complainants  were  the  undisputed  owners  of  all  the  franklinite 
and  iron  ores  upon  a  certain  tract,  when  they  were  found  separate  from 
the  zinc,  and  they  claimed  to  own  all  the  franklinite  and  iron  ores,  whether 
they  existed  separate  from  the  zinc  or  not.  The  defendants  were  the 
undisputed  owners  of  .ill  the  zinc  and  other  ores  on  same  premises,  except 
franklinite  and  iron  ores,  and  they  claimed  to  own  the  franklinite  and 
iron  ores  when  they  did  not  exist  separate  and  distinct  from  zinc  ores. 
Upon  bill  tiled,  an  injunction  had  been  allowed,  restraining  the  defend- 
ants from  mining,  carrying  away,  or  using  any  frankliuite  or  iron 
ore.  It  appeared  that  the  ores  or  minerals  were  found  combined  in  such 
varied  proportions  as  to  render  it  often  difficult  to  decide  which  metal 


216  CASES  IN  CHANCERY. 

Boston  Franklinile  Co.  v.  New  Jersey  Zinc  Co. 

preponderated  in  quantity  or  value,  in  a  given  specimen,  and  to  render  it 
difficult,  if  not  impossible,  to  mine  either  ore  without,  at  the  same  time, 
taking  the  other.  Upon  motion  being  made  to  dissolve  the  injunction, 
on  the  ground  that  the  whole  equity  of  the  bill  was  denied  by  the  answer, 
held— 

2.  First.  That  the  dispute  was  not  about  facts,  but  was  a  question  of 
legal  construction,  and  the  proper  interpretation  of  the   grants  of  this 
mining  rights. 

3.  Second.  That  the  matters  in  controversy  were  not  of  such  a  nature 
that  they  could  be  met  and  denied  by  the  answer,  so  as  to  entitle  the 
defendants  to  a  dissolution  of  the  injunction,  as  a  matter  of  course. 


This  was  a  motion  to  dissolve  an  injunction. 
Hayes  and  Bradley,  for  motion. 
Me  Carter  and  Hamilton,  contra. 

THE  CHANCELLOR.  An  injunction  has  been  issued  out 
of  this  court,  at  the  instance  of  the  Boston  Franlinite  Com- 
pany, against  the  New  Jersey  Zinc  Company,  restraining  the 
latter  from  mining,  carrying  away,  or  using  any  frankliuite 
ore  or  iron  ore  found  or  to  be  found  upon  part  of  a  tract 
known  as  Mine  Hill,  in  the  county  of  Sussex. 

The  zinc  company,  having  answered  the  bill,  ask  a  disso- 
lution of  the  injunction,  upon  the  ground  that  the  whole 
equity  of  the  bill  is  denied  by  the  answer. 

Neither  party  owns  the  soil.  Each  party  is  the  owner  of 
certain  mineral  and  mining  rights. 

Tne  zinc  company  are  the  undisputed  owners  of  all  the  zino 
and  other  ores  found  or  to  be  found  in  or  upon  the  premises, 
except  franklinite  and  iron  ores.  They  claim,  also,  to  own 
the  franklinite  and  iron  ores  when  they  do  not  exist  separate 
and  distinct  from  the  zinc  ores. 

The  franklinite  company  are  the  undisputed  owners  of  all 
the  franklinite  and  iron  ores  when  they  exist  separate  from 
the  zinc.  They  claim,  also,  to  own  all  the  franklinite  and 
iron  ores  in  or  upon  the  premises,  whether  they  exist  separate 
from  the  zinc  or  not. 


OCTOBER  TERM,  1860.  217 

Boston  Franklinite  Co.  v.  New  Jersey  Zinc  Co. 

In  the  progress  of  working  the  mines  upon  the  premi- 
ses, it  has  been  ascertained  that  the  two  ores  or  mineral 
are  found  extensively  in  mechanical  combination,  and  in 
such  varied  proportions  as  to  render  it  often  difficult  to 
decide  which  metal  preponderates  in  quantity  or  value  in 
a  given  specimen,  and  to  render  it  difficult,  if  not  im- 
practicable, to  mine  either  ore  without  at  the  same  time 
taking  the  other. 

The  question  of  title  between  the  parties  is,  who  is  en- 
titled to  the  ores  or  to  work  the  mine  when  the  ores  exist 
in  such  mechanical  combination  ? 

Another  question  is  necessarily  involved  in  the  contro- 
versy— where  two  ores  thus  exist  in  mechanical  combina- 
tion, what  gives  the  name  to  the  ore?  By  what  rule  is  its 
title  to  be  denominated  a  zinc  or  iron  ore,  to  be  decided? 
Is  it  by  the  preponderance  in  quantity  of  one  metal 
over  the  other  in  a  given  mass,  or  the  excess  in  value,  that 
fixes  the  proper  appellation  of  the  ore?  If  a  given  speci- 
men contain  fifty  per  cent,  of  iron,  and  only  twenty  per 
cent,  of  zinc,  is  it  an  iron  ore  ?  Or  if  the  twenty  per  cent, 
of  zinc  ore  in  the  specimen,  though  less  in  quantity,  is  of 
greater  value  than  the  iron,  and  will  better  repay  for  the 
labor  of  working  it,  does  it  become  a  zinc  ore? 

These  are  the  two  questions  which  are  raised  by  the 
answer,  and  which  the  court,  in  dissolving  the  injunction,  are 
called  upon  to  decide. 

Now,  from  the  nature  of  the  issues  made  by  the  an- 
swer, from  the  very  character  of  the  points  upon  which 
the  controversy  turns,  it  must,  I  think,  be  apparent  that 
the  answer  cannot  so  deny  the  equity  of  the  bill  as  to 
entitle  the  defendants  to  a  dissolution  of  the  injunction, 
according  to  the  well-settled  practice  of  a  court  of 
equity. 

It  is  not  necessary  to  turn  to  books  in  support  of  the 
familiar  principles  that  entitle  the  defendant  to  a  dissolu- 
tion of  the  injunction  upon  the  answer.  The  answer  must 
deny  the  facts  upon  which  the  equity  of  the  bill  rests.  It 


218  CASES  IN  CHANCERY. 

Tteaton  Franklinite  Co.  v.  New  Jersey  Zinc  Co. 

must  be  a  direct  and  positive  denial,  not  argumentative  j 
it  must  be  of  facts  within  the  knowledge  of  the  party,  and 
not  upon  mere  belief  or  opinion. 

So  far  as  the  answer  respects  the  extent  of  the  rights  of 
the  parties  under  their  respective  titles  and  acts  of  incor- 
poration it  is  clearly  not  a  fact  within  the  knowledge  of 
the  defendants,  but  a  question  of  legal  construction  which 
the  defendants  cannot  settle  by  an  answer,  and  which  the 
court  ought  not  to  decide  except  upon  a  final  hearing. 

So  in  regard  to  the  character  of  the  ore  and  its  appro- 
priate denomination  as  a  zinc  or  franklinite  ore,  the  dis- 
pute is  not  so  much  as  to  its  constituent  elements  as  it  is 
as  to  its  appropriate  appellation — not  so  much  as  to  the 
thing  as  to  the  name.  It  is  not  denied  that  both  minerals 
are  present  in  the  mass,  existing  in  close  mechanical 
combination,  nor  is  the  dispute  mainly  in  relation  to  the 
relative  proportion  of  the  two  elements.  The  apparent 
conflict  in  the  evidence  upon  this  point  may  be  fairly  at- 
tributable to  the  fact,  that  the  witnesses  refer  to  different 
specimens,  or  different  veins,  or  different  portions  of  a 
vein  of  ore.  But  in  speaking  of  the  same  oref  one  wit- 
ness says  it  is  a  very  superior  iron  ore,  it  contains  over 
60  per  cent,  of  pure  frankliuite;  another  witness  speak- 
ing of  the  same  ore  says,  I  call  it  a  very  rich  zinc  ore,  it 
contains  30  per  cent,  of  pure  zinc.  Now  there  is  no  dis- 
pute or  contradiction  in  regard  to  the  fact.  The  simple 
fact  is,  that  the  mass  contains  (upon  the  hypothesis 
stated)  60  per  cent,  of  franklinite,  30  per  cent,  of  zinc, 
.and  10  per  cent,  of  other  earths  or  minerals.  The  wit- 
.nesse.s  differ  only  as  to  the  name  by  which  the  mass  shall 
appropriately  be  called,  and  that  difference  is  produced 
solely  by  the  different  standards  which  the  witnesses- 
adopt  as  the  ground  of  their  opinion.  When,  therefore, 
.the  answer  affirms  a»d  the  witnesses  testify  that  the  ore 
,in  question  is  a  rich  zine  ore,  it  does  not  deny  the  fact 
.ijpon  which  the  equity  of  the  bill  rests,  and  which  the 


OCTOBER  TERM,  1860.  219 

Boston  Franklinite  Co.  v.  New  Jersey  Zinc  Co. 

complainants'  witnesses  affirm,  that  it  is  a  valuable  franklin- 
ite ore,  and  one  in  which  that  metal  decidedly  preponderates 
over  the  zinc. 

In  fact,  the  entire  structure  of  the  answer,  the  character 
of  the  evidence  adduced  in  support  of  it,  and  every  step 
in  the  very  able  and  discriminating  argument  by  which  the 
positions  of  the  answer  were  sought  to  be  sustained,  demon- 
strate that  the  entire  controversy  is  not  a  dispute  about  facts, 
but  is  a  question  of  legal  construction  and  the  proper  inter- 
pretation of  the  grants. 

These  are  matters  which  cannot  be  met  and  denied  by  an 
answer.  They  are  questions,  moreover,  which,  considering 
the  nature  of  this  controversy  and  the  magnitude  of  the  inter- 
ests at  stake,  ought  not  to  be  decided  except  upon  the  final 
hearing. 

On  the  hearing  of  the  motion,  a  large  portion  of  the  testi- 
mony of  one  of  the  parties,  which  was  otherwise  competent, 
was  excluded,  in  compliance  with  a  rule  of  the  court.  A 
decision  upon  the  merits,  under  such  circumstances,  couM 
not  be  satisfactory,  and  would  only  tend  to  embarrass  and 
protract  the  controversy.  On  this  ground,  notwithstanding 
the  very  full  and  satisfactory  argument,  upon  both  sides,  of 
the  legal  questions  involved,  I  purposely  and  scrupulously 
abstain  from  any  intimation  of  opinion  upon  the  merits  of 
the  controversy. 

The  motion  to  dissolve  the  injunction  must  be  denied. 

The  injunction,  however,  as  it  now  stands,  is  too  broad 
and  indefinite  in  its  terms.  It  restrains  the  zinc  company 
not  only  from  mining,  carrying  away,  or  using  any  frauk- 
liuite  ore  or  iron  ore  on  the  premises,  but  also  any  of  the 
ores  and  minerals  in  controversy  in  the  cause.  If,  by  the 
ores  atid  minerals  in  controversy,  is  meant  simply  frank- 
Jinite  and  iron  ore,  Uie  clause  is  unnecessary.  If  more  is 
meant,  it  is  wrong.  The  franklinite  and  iron  ores  are  all 
the  frankliuite  company  are  entitled  to.  If  it  be  true, 
as  the  defendants  contend,  that  the  ore  which  they  are 
mining  and  using  is  not  franklinite,  but  zinc  ore,  the  in- 


220  CASES  IN  CHANCERY. 

Schenck  v.  Conover. 

junction,  thus  modified,  will  not  interfere  with  their  opera- 
tions. If,  on  the  other  hand,  it  shall  prove  that  these  ores 
are  found  in  such  close  mechanical  combination  that  neither 
can  be  successfully  worked  without  mining  both,  then  it  is 
necessary  that  the  limits  of  the  rights  of  the  respective  parties, 
under  their  grants,  shall  be  clearly  defined  before  either  party 
can  safely  and  successfully  carry  on  mining  operations. 

This  modification  of  the  injunction  may,  I  am  aware,  give 
riae  to  embarrassment  upon  a  question  of  the  alleged  viola- 
tion of  the  injunction.  It  will,  however,  also  lead,  if  the 
parties  act  in  good  faith,  to  a  speedy  determination  of  the 
•case  upon  its  merits. 

NOTE. — Immediately  after  the  modification  of  the  injunc- 
tion, the  defendants  commenced  removing  the  ores  in  con- 
troversy. An  application  was  thereupon  made  to  restrain 
the  defendants  from  proceeding,  founded  upon  affidavits  that 
the  ores  which  were  being  removed  were  franklin! te,  and  not 
zinc.  The  order  applied  for  was  granted,  thus  virtually 
restoring  the  injunction  to  its  original  form. 


JACOB  SCHENCK  vs.  ELIAS  H.  CONOVER. 

1.  After  sale  on  foreclosure,  the  court  will  compel  the  mortgagor,  or 
any  person  who  has  come  in  possession  under  him   pending  the  suit,  or 
•whose  title  is  not  superior  to  his,  to  deliver  up  the  possession  of  the  prem- 
ises, and  will  not  drive  the  purchaser  to  an  action  of  ejectment. 

2.  And  this  assistance  will  be  extended  to  a  stranger  to  the  record,  pur- 
chasing at  such  sale,  as  well  as  to  the  mortgagee. 

3.  The  mode  of  proceeding  has  been  as  follows,  viz. :     1,  a  demand  of 
possession,  by  the  purchaser,  of  the  tenant  in  possession,  accompanied  by 
an  exhibit  of  the  deed  from  the  sheriff  or  master ;  2,  order  to  deliver 
possession  ;  3,  injunction  ;  and  4,  writ  of  assistance. 

4.  The  exercise  of  the  power  rests  in  the  sound  discretion  of  the  court. 
It  will  never  be  exercised  in  a  case  of  doubt,  nor  under  color  of  its  exer- 
cise, will  a  question  of  legal  title  be  tried  or  decided. 


OCTOBER  TERM,  1860.  221 

Schenck  v.  Conover. 

This  was  a  motion  for  an  order  on  defendant  to  deliver 
possession  of  lauds  sold  on  foreclosure. 

Rickey,  for  motion. 
W.  Halsted,  contra. 

THE  CHANCELLOR.  A  decree  of  foreclosure  and  for  the 
sale  of  the  mortgaged  premises  having  been  made  in  this 
cause,  a  writ  of  fieri  facias  issued  to  the  sheriff  of  Hunter- 
don,  by  virtue  of  which  the  premises  were  sold  and  con- 
veyed to  John  A.  Carroll.  Carroll  having  received  his 
title,  and  possession  of  the  premises  having  been  de- 
manded and  refused,  now  applies  to  the  court  for  an  order 
upon  the  defendant  to  deliver  possession.  The  order  is  asked 
for  as  the  foundation  of  an  application  for  a  writ  of  injunc- 
tion and  of  assistance. 

An  affidavit  of  Conover  was  by  consent  read  upon  the  hear- 
ing; but  there  is  nothing  in  the  facts  stated  in  the  affidavit 
which  is  deemed  material  to  the  question  in  controversy. 

The  objection  to  the  application  is,. that  the  court  have  no 
power  to  make  the  order  applied  for,  and  that  it  is  not  war- 
ranted by  the  practice  of  this  court. 

The  practice  of  putting  the  purchaser  into  possession 
of  premises  purchased  under  the  decree  of  this  court  is  of 
recent  origin.  The  earliest  case  was  that  of  Grant  v.  Qui- 
nan,  in  1853.  The  case  was  not  contested.  In  1854,  a 
similar  order  was  made  in  the  case  of  Kennedy  v.  Vree- 
laud.  This  case  was  contested,  and  an  appeal  was  taken 
from  the  order  of  the  Chancellor.  The  power  of  the  court 
was  not  seriously  contested,  the  appellant's  point  being 
that  "  the  remedy  (unusual  in  this  state)  by  writ  of  assist- 
ance is  not  properly  grautable  in  this  case,  because  pro- 
ceedings are  pending  in  the  Court  of  Chancery  to  set 
aside  the  petitioner's  title  for  good  and  sufficient  causes." 
The  order  of  the  Chancellor  was  unanimously  affirmed  at 
March  Term,  1855.  Since  then  similar  orders  have  been 

VOL,,  ii.  o 


222  CASES  IN  CHANCERY. 

Schenck  v.  Conover. 

of  frequent  occurrence.  It  might,  therefore,  be  deemed  a 
sufficient  answer  to  the  objection  to  say  that  the  order  asked 
is  in  accordance  .with  the  established  practice  of  this  court, 
and  that  the  practice  has  been  sanctioned  by  the  decision  of 
the  court  in  the  last  resort. 

But  inasmuch  as  the  propriety  of  the  practice  and  the 
power  of  the  court  to  adopt  it  are  now  drawn  directly  in 
question,  and  as  it  has  not  the  sanction  of  long-established 
usage,  it  may  be  well  to  examine  both  its  foundation  and  its 
policy. 

In  Roberdeau  v.  Rons,  1  Atk.  543,  Lord  Hardwicke  said 
the  delivery  of  the  possession  of  lands  may  be  enforced  in 
personam,  which  was  the  ordinary  way;  but  the  writ  of  as- 
sistance to  put  persons  in  possession  as  by  way  of  injunction 
is  of  more  modern  date.  This  was  in  1738. 

In  the  later  case  of  Penn  v.  Lord  Baltimore,  1  Vesey,  Sr., 
444,  Lord  Hardwicke  said,  "the  practice  of  putting  a  party 
into  possession  in  a  suit  concerning  lands  within  the  jurisdic- 
tion of  the  court  was  first  begun  and  settled  in  the  reign  of 
James  I.,  and  has  ever  since  been  done  by  injunction  or  writ 
of  assistance  to  the  sheriff." 

This  statement  of  Lord  Hardwicke  as  to  the  origin  of 
the  practice,  says  Mr.  Eden,  is  clearly  a  mistake,  for  many 
precedents  for  injunctions  to  deliver  possession  after  a 
decree  and  a  commission  or  writ  of  assistance  to  the 
sheriff  are  in  the  printed  reports  as  early  as  the  reign  of 
Queen  Elizabeth ;  and  in  a  manuscript  book  of  orders 
(which  appears  to  have  been  taken  from  the  registrar's 
books  in  the  Hargrave  collection,)  there  are  a  great  many 
precedents  of  injunctions  to  deliver  possession  of  lands 
after  a  decree,  in  the  time  of  Henry  VIII.,  Edward  VI.,  and 
Mary.  Eden  on  Injunctions  261,  Waterman's  ed.f  Vol.  2, 
p.  425. 

In  Dove  v.  Dove,  (before  the  lords  commissioners  in 
1783,)  by  the  decree,  the  estate  of  the  testator  was  to  be 
sold.  The  defendant,  the  widow,  who  had  got  into  pos- 
session under  some  claim  of  jointure  or  dower,  was  di- 


OCTOBER  TERM,  1860.  223 

Schenck  v.  Conover. 

recte<l  to  account.  The  estate  was  sold,  and  the  purchaser 
applied  to  the  widow  to  deliver  possession,  which  she  re- 
fused. He  then  applied  to  the  court,  and  obtained  posses- 
sion by  an  order,  injunction,  and  writ  of  assistance.  Dickens 
617  ;  1  Bro.  Ch.  375;  1  Cox  101,  8.  C. 

In  the  report  of  this  case  by  Dickens,  the  course  of  pro- 
ceeding to  obtain  possession  by  injunction  and  the  writ  of 
assistance  is  fully  stated. 

The  practice  was  adopted  also  in  Stribley  v.  Hawkie,  3 
Aik.  275,  and  in  Huguenin  v.  Bazeley,  15  Vesey  180. 

The  general  result  of  the  cases  is  that,  where  lands  are 
within  the  jurisdiction  of  the  court,  and  the  defendant  re* 
fuses  to  perform  the  decree  by  giving  the  plaintiff  posses- 
sion, the  court  will  enforce  its  decree  by  the  writ  of  assist- 
ance. WyatCs  Prac.  Reg.  207,  (London  ed.,  1800)  •  2  Mad. 
Chan.  Pr.  469,  (ed.  1822) ;  1  Fonb.  Eq.  32,  note  q;  1  New- 
land's  Ch.  Prae.  390 ;  1  Smith's  Ch.  Prac.  447. 

In  Garretson  v.  Cole,  1  Harris  &  John.  387,  Chancellor 
Hanson  said  an  injunction  for  possession  is  not  a  new 
thing  in  a  court  of  equity.  It  has  long  been  used  in  Eng- 
land, and  it  would  disgrace  our  laws  and  administration 
of  justice,  if,  after  a  title  to  land  had  been  established  by 
the  adjudication  of  a  court,  there  could  be  no  way  of  ob- 
taining possession  but  after  obtaining  judgment  in  eject- 
ment. 

In  Bujjum's  case,  13  New  Hamps.  14,  Ch.  Just.  Parker, 
in  delivering  the  opinion  of  the  court,  says:  " The  decree 
in  this  case  may  be  regarded  as  establishing  an  equitable 
title  in  the  complainant,  so  that,  without  the  execution  of 
any  deed  by  the  defendant  in  pursuance  of  it,  the  court 
would  put  the  plaintiff  in  possession  by  writ  of  assistance, 
if  necessary."  See,  also,  Devaucene  v.  Devaucene,  1  Edw. 
272. 

These  cases  clearly  show  the  long-established  and 
familiar  practice  of  the  Court  of  Chancery,  wherever  the 
conveyance  of  real  estate  is  decreed,  to  compel  the  de- 
fendant to  surrender  the  possession  to  the  plaintiff:  in 


224  CASES  IN  CHANCERY. 

Schenck  v.  Conover. 

other  words,  a  court  of  equity  will  enforce  its  own  decree,  as 
between  the  parties,  without  compelling  a  resort  to  an  action 
at  law. 

The  same  practice  is  adopted  under  sales  before  a  master 
in  the  English  Court  of  Chancery.  2  Smith's  Ch.  Pr.  213. 
The  application,  however,  is  made,  not  by  the  purchaser, 
but  by  the  solicitor  of  the  vendor,  at  the  instance  of  the  pur- 
chaser. 

So  on  a  bill  by  a  mortgagor  to  redeem  the  mortgaged 
premises,  the  court  will  order  the  defendant  to  deliver  up 
possession  to  the  plaintiff  without  putting  the  plaintiff 
to  his  ejectment.  Yates  v.  Humbly,  2  Atk.  360 ;  Seaton's 
Decrees  146. 

In  a  strict  foreclosure,  the  practice  is  otherwise.  In  such 
case  the  court  does  not  direct  the  mortgagor  to  deliver  up 
the  possession  of  the  mortgaged  premises  to  the  plaintiff, 
but  leaves  the  plaintiff  to  his  ejectment.  Sutlon  v.  Stone,  2 
Atk.  101 ;  Seaton's  Decrees  140. 

The  reason  for  this  distinction  in  practice  seems  to  be 
that,  on  a  bill  to  redeem,  there  is  a  decree  for  a  re-con- 
veyance by  the  mortgagee  to  the  mortgagor.  The  mortgagor 
acquires  title  under  the  decree  of  the  court,  and  the  court 
will  perfect  his  title,  and  give  him  the  benefit  of  the  decree, 
by  putting  him  in  possession  ;  whereas,  under  a  bill  for  fore- 
closure, the  complainant  has  the  legal  title,  and  only  asks 
that  the  equity  of  redemption  be  foreclosed.  He  acquires 
no  title  under  the  decree  of  the  court.  No  conveyance  is 
ordered,  and  no  delivery  of  possession  is  necessary  to  give 
effect  to  the  decree. 

It  becomes,  then,  a  mere  question  of  practice  whether 
a  court  of  equity  will,  in  the  exercise  of  its  undxmbted 
power,  give  full  effect  to  its  decree  for  the  sale  and  con- 
veyance of  mortgaged  premises  by  putting  the  purchaser 
into  possession.  The  subject  was  fully  examined,  and  the 
practice  adopted  by  Chancellor  Kent,  in  Kers-haw  v.  Thomp- 
son, 4  Johns.  Ch.  609.  In  a  luminous  opinion,  in  which 
"he  examines  both  the  power  of  the  court  to  adopt  the 


OCTOBER  TERM,  1860.  225 

Schenck  v.  Conover. 

practice  and  the  policy  of  its  adoption,  he  says,  "  The  dis- 
tribution of  power  among  the  courts  would  be  injudicious, 
and  the  administration  of  justice  exceedingly  defective 
and  chargeable  with  much  useless  delay  and  expense,  if 
it  were  necessary  to  resort  in  the  first  instance  to  a  court 
of  equity,  and  afterwards  to  a  court  of  law  to  obtain  a 
perfect  foreclosure  of  a  mortgage.  It  seems  to  be  absurd 
to  require  the  assistance  of  two  distinct  and  separate 
jurisdictions  for  one  and  the  same  remedy,  viz.,  the  fore- 
closure and  possession  of  the  forfeited  pledge.  But  this 
does  not,  upon  due  examination,  appear  to  be  the  case; 
and  it  may  be  safely  laid  down,  as  a  general  rule,  that  the 
l>o\ver  to  apply  the  remedy  is  co-extensive  with  the  juris- 
diction over  the  subject  matter.  A  bill  to  foreclose  the 
equity  of  redemption  is  a  suit  concerning  the  realty  and 
in  remt  and  the  power  that  can  dispose  of  the  fee  must 
control  the  possession.  The  parties  to  the  suit  are  bound 
by  the  decree,  their  interests  and  rights  are  concluded 
by  it,  and  it  would  be  very  unfit  and  unreasonable  that 
the  defendant,  whose  right  and  title  has  been  passed  upon 
and  foreclosed  by  the  decree,  should  be  able  to  retain  the 
possession  in  despite  of  the  court.  This  is  not  the  doc- 
trine of  the  cases,  not  the  policy  of  the  law." 

This  decision  has  been  approved,  and  the  practice 
adopted  in  numerous  cases.  Ludlow  v.  Lansing,  Hopkins 
231 ;  Valentine  v.  Teller,  Hopkins  422  ;  Vanhook  v.  Throck- 
morton,  8  Paige  33 ;  Dorsey  v.  Campbell,  1  Bland  363 ;  3/c- 
Komb  v.  Kankey,  I  Bland  363,  note  c;  Aldrich  v.  Sharp,  3 
Scammon  261  ;  Hart  v.  Lindsay,  Walker's  Ch.  72;  Benhard 
v.  Darrow,  Ibid.  519;  Commonwealth  v.  Raysdale,  2  Hen.  & 
Mun.  8. 

These  cases  show  that  at  this  day,  upon  a  sale  under  a 
decree  of  a  Court  of  Chancery,  the  delivery  of  possession 
to  the  purchaser  by  injunction  and  writ  of  assistance  is 
well  settled  and  of  right  when  the  possessor  does  not  claim, 
to  hold  by  title  paramount  to  the  parties. 

The  case  has  hitherto  been  considered  solely  in  reference 


226  CASES  IN  CHANCERY. 

Schenck  v.  Conover. 

to  the  general  powers  of  the  court  without  regard  to  any 
statutory  provision,  but  the  practice  is  certainly  war- 
ranted, if  not  expressly  authorized  by  our  statute.  Nix. 
Dig.  95,  §  63 ;  Rev.  Laws,  1820,  702,  §  4. 

By  a  clause  of  that  section  it  is  enacted,  that  the  com- 
plainant having  obtained  a  decree,  it  shall  be  lawful  for  the 
said  court  *  *  "to  cause  by  injunction  the  possession  of 
the  effects  and  estate  demanded  by  the  bill,  and  whereof  the 
possession  or  a  sale  is  decreed,  to  be  delivered  to  the  com- 
plainant, or  otherwise  according  to  such  decree  and  as  the 
nature  of  the  case  may  require." 

The  Maryland  statute  of  1785  is  identical  with  our  own. 
In  McKomb  v.  Kankey,  1  Bland  363,  note  c,  decided  in 
1807,  possession  was  delivered  to  a  purchaser  at  a  sher- 
iff's sale  of  mortgaged  premises  against  the  lessee  of  the 
mortgagor.  The  Chancellor  said,  u  The  general  power  of 
the  Court  of  Chancery  to  issue  an  injunction  directing 
possession  to  be  delivered  is  sanctioned  by  the  practice  in 
England  and  by  our  acts  of  assembly.  The  decree  for  pos- 
session and  injunction  is  a  process  demandable  of  right 
as  much  as  an  attachment  or  other  execution,  and  ought  not 
to  be  refused  when  the  power  is  considered  to  exist.  An 
application  for  possession  in  such  case  is  founded  on 
the  .  general  powers  of  the  court  and  on  the  act  of  1785." 

The  proper  mode  of  proceeding  where  the  delivery  of 
possession  is  not  included  in  the  decree,  as  settled  in 
Kershaw  v.  Thompson,  and  as  hitherto  adopted  in  this 
court,  is  a  demand  of  possession  by  the  purchaser  of  the 
tenant  in  possession,  accompanied  by  an  exhibit  of  the 
deed  from  the  sheriff  or  master,  order  to  deliver  posses- 
sion, injunction,  and  writ  of  assistance.  The  preliminary 
orders  are  made  upon  notice  and  affidavits ;  the  last  writ 
issues  of  course  and  without  notice.*  4  Johns.  Ch.  610; 

*  In  a  more  recent  case  it  has  been  held  that  the  injunction  should  be 
dispensed  with,  and  that  the  writ  of  assistance  should  issue  in  the  first  in- 
stance, upon  proof  of  the  service  of  the  order  to  deliver  possession,  of 
demand  of  possession,  and  refusal  to  comply  therewith.  Notice  of  the 
application  is  necessary. 


OCTOBER  TERM,  1860.  227 

Schenck  v.  Conover. 

Harbour's  Chan.   Prac.  441.      See   the   Forms,   Hoffman .8 
Master  393 ;  Seaton's  Forms  424,  425. 

In  Valentine  v.  Teller,  Hopkins  422,  it  was  held  that  the 
writ  of  assistance  was  the  first  and  only  process  necessary  for 
giving  possession,  and  that  the  injunction  was  not  necessary. 
And,  by  the  present  English  practice,  regulated  by  1  Will.  4, 
c.  36,  upon  proof  of  the  service  of  the  order  for  the  delivery 
of  possession,  of  demand  of  possession,  and  of  refusal  to 
comply  therewith,  the  writ  of  assistance  issues  in  the  first  in- 
stance, the  writ  of  injunction  as  well  as  the  writ  of  attach- 
ment used  in  the  ancient  practice  being  dispensed  with.  2 
DanieWs  Ch.  Pr.  1280. 

The  injunction  is,  in  fact,  but  a  repetition  of  the  order  of 
the  court  to  deliver  possession,  and  it  would  seem  that  it 
might  be  advantageously  dispensed  with. 

The  cases  cited  meet  all  the  objections  that  were  urged  upon 
the  argument  to  granting  the  relief  asked  for  in  this  case. 
They  show  that  the  writ  of  assistance  will  issue  as  well  when 
a  special  order  is  made  for  the  delivery  of  possession  after  u 
sale,  as  when  the  direction  is  included  in  the  decree;  that  it 
will  be  granted  at  the  instance  of  the  purchaser  after  a  sale  as 
well  as  on  the  application  of  the  complainant ;  and  that  it  ma?' 
be  made  not  only  as  against  the  defendant,  but  against  an* 
party  in  possession  under  him,  or  by  title  not  superior  to  his. 
It  is  scarcely  necessary  to  add  that  the  exercise  of  the  power 
it-sts  in  the  sound  discretion  of  the  court.  It  will  never  be 
exercised  in  a  case  of  doubt,  nor  under  color  of  its  exercise 
will  a  question  of  legal  title  be  tried  or  decided.  With  these 
limitations  of  its  exercise,  I  believe  that  the  practice  which 
has  been  adopted  will  be  found  both  safe  and  salutary.  The 
practice  of  delivering  possession  of  mortgaged  premises  to  the 
purchaser  under  a  sale  caade  by  the  authority  of  this  court  is, 
as  has  been  said,  of  recent  adoption  in  this  state.  It  is  not, 
however,  the  exercise  of  a  new  power.  It  is  but  the  more 
extended  application  of  a  familiar  power  which  has  been  ex- 
ercised in  the  Court  of  Chancery  for  centuries. 

CITED  in  Shields  v.  Lozear,  5  Vroom  508 ;  Thomas  v.  De  Baum,  1  J/cCUr. 
39  ;    Vanmeter  v.  Eorden,  10  C.  E.  Gr.  414. 


228  CASES  IN  CHANCERY. 

Huston  v.  Cassedy. 


HUSTON  vs.  CASSEDY. 

1.  The  rule  is  inflexible,  that  a  sale  made  by  an  administrator,  or  any 
other  acting  in  a  fiduciary  capacity,  to  himself  or  for  his  benefit,  will  be 
held  void  at  the  instance  of  the  party  prejudiced. 

2.  The  remedy  in  equity  is  to  set  aside  the  sale  on  equitable  terms,  and 
to  treat  the  administrator  as  a  trustee  for  the  parties  in  interest. 

McCarUr,  for  complainant. 
R.  Hamilton,  for  defendant. 

THE  CHANCELLOR.  On  the  25th  of  December.  1848, 
Andrew  Cassedy,  of  the  county  of  Sussex,  died  intestate, 
leaving  eight  minor  children  his  heirs-at-la\v.  Part  of 
his  real  estate  was  sold,  on  the  application  of  his  admin- 
istrators, by  order  of  the  Orphans'  Court,  for  the  payment 
of  the  debts  of  the  estate.  Samuel  Cassedy,  a  brother  of 
the  intestate,  soon  after  the  sale,  became  the  owner  of  the 
properly.  This  bill  is  filed  by  the  children  and  heirs-at- 
law  of  the  intestate.  It  charges  that  the  sale  was  illegal 
and  fraudulent  as  against  the  heirs,  being,  in  reality,  pur- 
chased at  the  instance  of  the  administrator,  and  for  his 
benefit. 

The  evidence  discloses  the  following  facts  :  The  farm  was 
advertised  for  sale  on  the  27th  of  October,  1849,  and  was 
struck  off  to  David  Ryerson  for  $4000.  Ryerson  sent  an  agent 
to  attend  the  sale,  and  became  the  purchaser  at  the  special  re- 
quest of  Samuel  Cassedy,  the  administrator,  and  upon  the  as- 
surance that  he  should  not  lose  by  the  purchase.  A  deed  was 
executed  to  the  purchaser,  though  he  never  complied  with  the 
conditions  of  sale,  paid  no  part  of  the  purchase  money,  and 
gave  no  security  for  its  payment.  On  the  16th  of  March  fol- 
lowing, the  property  was  exposed  by  Ryerson  to  public  sale, 
and  struck  off  to  the  administrator  for  the  sum  of  $4826.25. 
The  conditions  of  this  sale  were  also  abandoned.  The  vendor 
accepted  less  than  the  sum  bid  at  the  eale  in  payment  of 


OCTOBER  TERM,  1860.  229 

Huston  v.  Cassedy. 

the  purchase  money.  What  abatement  in  the  price  was  made 
does  not  appear  either  by  the  answer  of  the  defendant  or  by 
the  evidence.  All  the  evidence  given  upon  this  point  is  the 
statement  of  the  purchaser  at  the  first  sale,  viz.,  that  the 
advance  he  received  was  sufficient  to  satisfy  him  for  his 
trouble.  Before  the  purchase  Ryerson  neither  saw  the  pro- 
perty nor  examined  the  title.  While  the  title  continued 
in  him  he  had  co  communication  with  the  tenant ;  he  never 
visited  the  property  nor  exercised  any  act  of  ownership 
over  it. 

At  the  sale  made  by  the  administrators  the  property  was 
struck  off,  at  the  first  and  only  bid  that  was  made,  by  order 
of  Samuel  Cassedy,  against  the  remonstrance  of  his  co-ad- 
ministrator. It  was  sold  for  a  less  price  than  would  have 
been  paid  by  others  who  were  desirous  to  purchase,  but  who 
were  prevented  from  attending  the  sale  by  information  de- 
rived from  one  of  the  administrators,  that  the  sale  would  not 
be  made  upon  the  first  day,  but  that  the  terms  of  sale  would 
be  made  known,  and  an  opportunity  afforded  to  those  de- 
sirous of  purchasing  to  make  arrangements  to  comply  with 
the  conditions.  Cassedy  did  nothing  to  enhance  the  price  of 
the  property  or  encourage  bidders,  but  as  far  as  the  evidence 
shows  rather  discouraged  them.  Immediately  after  the  sale 
lie  informed  his  co-administrator  that  the  bid  was  his — that 
he  could  not  bear  to  see  the  property  go  into  the  hands  of 
strangers.  At  the  public  sale  made  by  Ryerson,  when  the 
property  was  struck  off  to  the  administrator,  other  persons 
forbore  to  bid,  from  a  belief  and  an  understanding  prevalent 
in  the  neighborhood  that  the  administrator  was  in  fact  the 
owner,  and  that  bids  by  others  would  be  unavailing.  These 
facts  justify  the  conclusion  that  Samuel  Cassedy,  one  of  the 
administrators,  was  in  reality  the  purchaser  at  the  adminis- 
trators' sale,  and  that  the  property  was  struck  off  at  his  in- 
stance and  for  his  benefit. 

Such  sale  is  invalid.  The  rule  is  inflexible,  that  a  sale 
made  by  an  administrator,  or  any  other  acting  in  a  fidu- 


230  CASES  IN  CHANCERY. 

Huston  v.  Cassedy. 

ciary  capacity,  to  himself  or  for  his  benefit,  will  be  held  void 
at  the  instance  of  the  party  prejudiced  by  such  sale,  and  the 
purchaser  regarded  in  equity  as  a  trustee.  Davoue  v.  Fan- 
ning, 2  J.  0.  R.  252 ;  Michoud  v.  Girod,  4  Howard  503 ; 
Soott  v.  Gamble,  1  •  Stockt.  235 ;  Mul/ord  v.  Bowen,  1  Stockt. 
797 ;  Obert  v.  Obert,  2  Stockt.  98 ;  8.  C.  on  appeal,  1  Beas  •• 
ley  423. 

It  has  been  held  by  the  Supreme  Court  of  this  state  that 
a  sale  made  by  an  administrator  is  void  at  law,  or  if  not  ab- 
solutely void,  is  voidable  in  a  court  of  law  at  the  instance  of 
the  cestuis  que  trust  or  their  heirs.  Winans  v.  Brookfield,  2 
South.  847  ;  Den  v.  Wright,  2  Hoist.  175;  Den  v.  McKnight, 
6  Halst.  385 ;  Den  v.  Hammell,  3  Harr.  74.  But  see  Run- 
yon  v.  Newark  India  Rubber  Co.,  4  Zab.  467. 

The  remedy  in  equity  is  to  set,  aside  the  sale  upon  equita- 
ble terms,  and  to  treat  the  administrator  as  a  trustee  for  the 
parties  in  interest. 

The  sale  must  be  set  aside  upon  the  usual  terras. 

Upon  the  evidence  now  before  the  court,  I  deem  it  equita- 
ble, and  shall  so  direct,  unless  the  complainant  show  cause  to 
the  contrary,  that  it  be  referred  to  a  master  to  take  an  account 
of  the  full  and  fair  value  of  the  farm  at  the  time  of  the  sale 
by  the  administrators  at  a  fair  sale  upon  the  usual  credit,  and 
after  deducting  from  such  value  the  sum  for  which  the  de- 
fendant has  already  accounted  to  the  estate  of  the  said  An- 
drew Cassedy,  deceased,  to  take  and  state  an  account  of  what 
is  now  due  from  the  defendant  on  account  of  such  purchase, 
with  interest.  ^mi  ..**« 

CITED  t»  Eooraem  v.  Wells,  4  C.  E,  Gr.  97 ;  Smith  v. -Drake,  8  C.  E.  Or.  306. 


ADJUDGED    IN 


THE  COURT  OF  CHANCERY 


OF  THE 


STATE   OF   NEW  JERSEY. 

FEBRUARY  TERM,  1861. 


UPDIKE  vs.  BARTLES  and  others. 

1.  Where  a  bill  has  been  dismissed  or  demurrer  allowed,  and  another 
bill  is  filed  for  the  same  matter,  this  court  will  stay  proceedings  in  the 
second  suit  till  the  costs  of  the  former  are  paid. 

2.  Equity,  in  this  particular,  adopts  the  practice  at  law. 


In  a  former  suit  between  these  parties,  for  the  same  cause 
of  action,  the  defendants  demurred.  The  demurrer  was  sus- 
tained, and  the  complainant's  bill  dismissed.  3  Stockt.  133. 
The  defendants  now  ask  that  the  proceedings  in  this  suit 
be  stayed  until  the  costs  of  the  former  suits  are  paid,  and 
that  after  such  payment  they  be  allowed  time  to  plead, 
answer,  or  demur.  The  application  was  sustained  by  proof 
of  the  identity  of  the  cause  of  action,  of  the  decree  for  costs  in 
the  former  suit,  and  of  their  taxation,  and  demand  of  payment. 

Richey,  for  defendants,  cited  Sooy  v.  McKean,  4  Halst.  86 ; 
Swing  v.  Inhabitants  of  Upper  Alloways  Creek,  6  Halst.  58 ; 
Den  v.  Sinnickson,  2  Green  193. 

231 


232  CASES  IN  CHANCERY. 

Pentz  v.  Simonson. 

THE  CHANCELLOR.  When  the  complainant's  bill  has 
been  dismissed  or  a  demurrer  allowed,  and  another  bill  is 
filed  for  the  same  cause,  this  court  will  stay  proceedings  in 
the  second  suit  until  the  costs  of  the  first  suit  are  paid. 
Equity,  in  this  particular,  adopts  the  practice  at  law.  Hoi- 
brook  v.  Cracroft,  5  Vesey  706,  note  b  ;  Pickett  v.  Loggon,  5 
Vesey  702;  I  Newland's  Ch..  Pr.  412;  2  Hoffman's  Ch. 
Pr.  77. 

The  rule  has  its  limitations,  but  this  case  does  not  come 
within  their  operation.  Sears  v.  Jackson.  3  Stockton  45  ; 
Budge,  v.  Budge,  12  Beavan  385;  Wild  v.  Hobson,  2  Vesey 
&  jB.  112;  Corbett  v.  Corbett,  16  Vesey  410. 

Let  an  order  be  made  that  the  proceedings  be  stayed,  and 
that  the  defendants  have  time  to  plead,  answer,  or  demur  till 
the  end  of  thirty  days  after  the  complainant  shall  have  paid 
the  costs  of  the  former  suit.  ' 


PENTZ  vs.  SIMONSON  and  wife. 

•  1.  Liabilities  voluntarily  incurred  by  a  married  woman  will  be  charged 
upon  her  separate  estate,  but  she  cannot  by  her  contract  make  herself 
personally  liable. 

2.  The  act  of  1857,  which  provides  that  a  feme  covert  may  covenant  as 
to  the  title  of  her  lands,  affords  the  strongest  legislative  construction  that 
the  act  of  1852  does  not,  by  necessary  implication,  confer  upon  her  the 
right  to  dispose  of  her  real  estate,  or  to  make  contracts  in  regard  to  it. 

3.  A  contract  entered  into  by  a  married  woman  for  the  sale  of  her  estate, 
cannot  be  enforced. 

4.  But  equity  will  charge  her  separate  property  with  the  re-payment  of 
money  advanced  to  the  wife,  at  her  instance  and  for  her  benefit,  or  on  ac- 
count of  her  estate. 

Winfield,  for  complainant. 

THE  CHANCELLOR.  The  bill  is  filed  to  enforce  the  spe- 
cific performance,  by  the  husband  and  wife,  of  a  contract 
made  by  and  between  the  wife  of  the  defendant  and  the 


FEBRUARY  TERM,  1861.  233 

Pente  v.  Simonson. 

complainant  for  the  sale  and  conveyance  of  the  real  estate 
of  the  wife.  The  contract  is  in  writing,  bears  date  on  the 
39th  day  of  January,  1860,  and  is  executed  by  the  parties 
under  their  respective  hands  and  seals. 

The  contract  was  signed  by  the  wife,  in  the  presence 
and  with  the  assent  of  the  husband.  The  consideration 
to  be  paid  for  the  conveyance  was  $2500,  part  of  which 
was  a  mortgage  of  $1000  upon  the  premises.  Of  the  sura 
of  $1500  to  be  paid  in  addition  to  the  mortgage,  $50  was 
paid  at  the  execution  of  the  contract  to  the  husband  in 
the  presence  of  the  wife,  and  $500  more  was  subsequently 
paid  to  the  husband,  as  the  agent  of  the  wife.  The 
property  was  conveyed  to  the  wife  by  deed  dated  on  the 
10th  of  March,  1858.  There  is  no  allegation  of  a  tender 
of  the  balance  of  the  purchase  money  to  the  wife,  nor  of 
the  demand  of  a  deed  from  her.'  There  is  an  allegation 
in  the  bill  that  the  complainant  was  ready  to  pay  the 
balance  of  the  purchase  money;  that  he  has  frequently  ap- 
plied to  the  husband,  and  requested  him  to  execute  and 
deliver  a  deed  according  to  the  terms  of  the  agreement, 
which  he  refused  to  do,  but  said  he  would  sell  to  others,  but 
not  to  the  complainant. 

Assuming,  in  its  fullest  extent,  the  doctrine  that  a  feme 
covert  is  to  be  regarded  in  equity  as  a  feme  sole,  with  respect 
to  her  separate  estate,  and  that  she  has  power  to  dispose  of  it 
at  her  pleasure,  the  question  remains,  will  equity  enforce  the 
specific  performance  of  her  contract  for  the  conveyance  of 
her  lands? 

It  was  held  by  this  court,  in  Leaycrcift  v.  ffedden,  3  Green 
512,  in  accordance  with  numerous  authorities  there  cited,  that 
liabilities  voluntarily  incurred  by  the  wife,  would  be  charged 
upon  her  separate  estate,  but  that  she  could  not,  by  her  con- 
tract, make  herself  personally  liable. 

There  is  no  doctrine  of  the  common  law  better  settled 
than  that  a  married  woman  can  enter  into  no  contract  or 
covenant  by  which  she  will  be  personally  bound.  Leaycrafl 


234  CASES  IN  CHANCERY. 

Pentz  v.  Simonaon. 

v.  Hedden,  3  Green's  Ch.  jR.  552 ;  Jackson  v.  Vanderheyden, 
17  Johns.  R.  167. 

This  contract,  it  is  admitted,  could  not  be  enforced  in  a 
court  of  common  law.  No  damages  could  be  recovered 
against  her,  or  enforced  against  her  separate  estate  for  its 
violation. 

The  disability  of  a  feme  covert  to  enter  into  contracts  has 
been  relaxed  by  onr  law.  in  specified  cases. 

She  may,  by  deed  executed  and  acknowledged  pursuant  to 
the  statute,  convey  real  estate  and  bar  her  right  of  dower ; 
and,  by  the  act  of  March  20th,  1857,  (Pamph.  L.  485,)  any 
married  woman  of  fall  age  who  joins  with  her  husband  in 
executing  a  deed  of  lands,  or  any  estate  therein,  may  cove- 
nant as  to  the  title  of  said  lands,  or  against  encumbrances 
thereon,  or  in  warranting  the  same ;  and  such  covenants 
shall  have  the  same  force  and  effect  against  her  and  all  per- 
sons claiming  under  her  as  if  she  were  a  feme  sole. 

This  act  furnishes  the  strongest  legislative  construction 
of  the  act  of  1852,  "for  the  better  securing  the  property 
of  married  women,"  viz.,  that  it  does  not,  by  necessary 
implication,  vest  in  the  married  woman  the  power  of  dis- 
posing of  her  real  estate  or  of  making  contracts  in  regard 
to  it. 

"Though  a  wife  may  convey  her  estate  by  deed,  she 
will  not  be  bound  by  a  covenant  or  agreement  to  convey 
her  estate.  The  agreement  by  a  feme  covert,  with  the 
assent  of  her  husband,  for  a  sale  of  her  real  estate,  is  abso- 
lutely void  at  law,  and  the  courts  of  equity  never  enforce 
•Bucli  a  contract  against  her."  4  Kent's  Com.  156;  Martin 
v.  Dwelly,  6  Wend.  9 ;  5  Day  496  ;  Butler  et  al  v.  Bucking- 
ham, 2  Jae.  &  Walk.  412  ;  Mad.  261. 

The  statute  provides  that  a  married  woman  shall  con- 
vey her  lands  only  by  joining  with  her  husband  in  a 
conveyance,  and  by  an  acknowledgment,  upon  a  private 
examination  apart  from  her  husband,  that  the  deed  was 
-executed  freely,  without  any  fear,  threat,  or  compulsion. 


FEBRUARY  TERM,  1861.  235 

Pente  v.  Simonson. 

But  wliat  protection  will  the  statute  afford  if  a  court  of 
equity  will  compel  the  wife,  against  her  will,  to  execute  a 
deed  in  performance  of  a  contract  made  at  the  instigation  or 
upon  the  compulsion  of  her  husband,  in  the  presence  of  the 
purchaser  alone? 

The  fx  parte  evidence  on  the  part  of  the  complainant  in 
this  very  case,  exhibits  strikingly  the  danger  to  which  the 
wife  would  unavoidably  be  exposed  by  the  adoption  of  this 
doctrine  of  being  stripped  of  her  property  at  the  instance  of 
her  husband  without  her  full  consent. 

The  deed  was  executed  by  the  wife  in  the  presence  of  her 
husband  and  of  the  agent  of  the  purchaser.  The  agent  tes- 
tifies that  upon  his  offer  being  made  the  wife  said,  "No,  I 
can't  take  it."  She  added,  "I  have  authorized  my  husband 
to  act  as  my  agent,  and  I  don't  know  that  I  have  anything 
to  say.  But  if  he  consents  I  would  rather  not  sell  the  place, 
but  he  can  do  as  he  pleases."  The  whole  consideration  paid 
on  account  of  the  purchase  was  paid  to  the  husband,  as  agent 
of  the  wife. 

It  is  obvious  that  if  a  contract  thus  entered  into  by  a  mar- 
ried woman  i.s  to  be  specifically  enforced  in  equity,  the  statute, 
so  far  from  operating,  as  its  title  imports,  "  for  the  better  se- 
curing the  property  of  married  women,"  will  strip  them  of 
all  the  protection  with  which  the  jealousy  of  the  common 
law  guarded  their  rights  against  the  authority  and  control  of 
the  husband.  She  will  in  fact  be  in  a  more  unprotected  con- 
dition against  the  control  of  her  husband  in  regard  to  her 
separate  property  than  she  is  in  regard  to  her  estate  in  the 
property  of  her  husband. 

This  very  question  was  decided  in  this  court,  more  than  a 
quarter  of  a  century  ago,  in  the  case  of  Wooden  v.  Mori-is 
and  wife,  2  Giten's  Ch.  R.  65.  The  complainant  is  not  en- 
titled to  a  decree  for  a  specific  performance. 

But  though  equity  will  not  decree  the  specific  perform- 
ance of  a  contract  entered  into  by  a  married  woman  for 
the  sale  of  her  estate,  it  will  charge  her  separate  property 
with  the  re-payment  of  money  advanced  to  the  wife  at 


236  CASES  IN  CHANCERY. 

Jones'  Executors  v.  Jones. 

her  instance  and  for  her  benefit  or  on  account  of  her  estate. 
Norton  v.  Turvill,  2  P.  W.  144 ;  Greatly  v.  Noble,  3  Mad. 
49  ;  Stuart  v.  Kirkwall,  3  Mad.  200. 

It  appears  from  the  evidence,  that  in  pursuance  of  the  con- 
tract made  with  the  wife,  the  sum  of  $550  was  advanced  by 
the  complainant  to  the  wife,  or  to  her  husband  as  her  agent, 
on  account  of  the  purchase  money.  Having  refused  to  exe- 
cute the  contract  there  can  be  no  equity  in  'her  retaining  the 
purchase  money  so  advanced  upon  her  contract. 

She  is  in  equity  as  much  bound  to  re-pay  the  sum  thus  ad- 
vanced as  though  she  had  given  her  bond  or  note  for  the  re- 
payment of  the  money. 

CITED  in  Eckert  v.  Renter,  4  Vr.  268;  Peeler  v.  Levy,  4  0.  E.  Gr.  332; 
Phelps  v.  Morrison,  9  C.  E.  Gr.  200,  547;  Pieraon  v.  Lum,  10  0.  E. 
Or.  391. 


JONES'  EXECUTORS  vs.  JONES. 

1.  Where  lands  are  devised  to  a  woman  and  her  children,  she  having 
children  living  at  the  time  of  the  devise,  the  word  "children"  must  be 
taken  as  a  word  of  purchase,  and  the  children  take  a  joint  estate  with  the 
mother.    A  provision  that  the  devisee  shall  pay  an  annuity  for  the  life  of 
another  is  sufficient  at  the  common  law  to  enlarge  a  life  estate  to  a  fee 
.simple. 

2.  A  testator  bequeathed  the  rest,  residue  and  remainder  of  his  real  and 
personal  estate  to  his  grand-daughter  and  her  children,  provided  she  should 
pay  to  S.  the  sum  of.  $40  during  her  natural  life,  and  should  paint  and  keep 
in  good  repair  the  fence  around  his  burial  lot.     At  date  of  will  and  at  the 
death  of  the  testator  the  grand-daughter  had  two  children  living,  a  son  and 
a  daughter.     In  a  previous  part  of  the  will,  provision  was  made  for  the  son 
of  the  grand-daughter,  the  fund  being  withheld  from  him  until  he  attained 
twenty-one. 

3.  Held,  that  the  property  included  in  the  residuary  clause  went  exclu- 
sively to  the  grand-daughter. 

4.  Held  further,  that  her  estate  in  the  lands  was  a  fee  simple,  and  not  a 
fee  tail. 

5.  There  was  a  codicil  to  the  above  will,  as  follows:  "I,  D.  J.,  make  this 
codicil  to  my  last  will  and  testament,  that  is,  I  sell  unto  C.  S.  my  tavern- 
house  and  lot,  with  one-third  of  the  lot  behind  the  barn,  for  the  sum  of 
$6950,  provided  he,  the  said  C.  S.,  satisfies  my  executors  as  to  the  payment 


FEBRUARY  TERM,  1861.  237 

Jones'  Executors  v.  Jones. 

of  the  same."  Held,  that  the  design  of  the  codicil  was  to  empower  the 
executors  to  convey  the  land  which  the  testator  had  agreed  to  sell  upon 
the  payment  by  the  vendee  of  the  purchase  money. 

6.  It  is  not  competent  for  the  purchaser  to  show,  by  parol  evidence,  that 
the  scrivener  who  drew  the  codicil  made  a  mistake,  and  that  he  waa  to 
have  two-thirds  of  the  lot  behind  barn. 


W.  S.  Whitehead,  for  complainants. 

THE  CHANCELLOR.  The  residuary  clause  of  the  will 
upon  which  the  first  question  in  the  cause  arises  is  as 
follows:  "I 'give,  devise  and  bequeath  all  the  rest,  resi- 
due and  remainder  of  my  real  and  personal  estate  to  my 
grand-daughter  Marietta,  wife  of  James  Pettigrew,  and 
her  children,  provided  she  pays,  or  causes  to  be  paid,  unto 
Sally  Smith,  daughter  of  William  Smith,  deceased,  the 
sum  of  $40  each  and  every  year  during  the  natural  life 
of  the  said  Sally  Smith,  also  to  paint  and  keep  in  good 
repair  the  fence  around  my  burying  lot  in  Springfield 
cemetery." 

At  the  date  of  the  will  and  at  the  death  of  the  testator, 
the  grand-daughter  had  two  children  living,  a  sou  and  a 
daughter. 

According  to  the  familiar  rule  in  Wildes'  case,  where 
lands  are  devised  to  M.  and  her  children,  she  having  chil- 
dren living  at  the  time  of  the  devise,  the  word  children 
must  be  taken  as  a  word  of  purchase,  according  to  its  nat- 
ural import,  and  the  children  take  a  joint  estate  with 
the  mother  in  the  land  devised.  Wildes1  case,  6  Coke  16, 
6/2  Williams  on  Executors  937  ;  Oates  v.  Jackson,  2  Strange 
1172. 

This  construction,  like  every  other,  is  liable  to  be  con- 
trolled by  provisions  in  the  will  indicating  a  different  in- 
tention on  the  part  of  the  testator;  and  there  are  provisions 
in  this  will  from  which  it  may  be  naturally  inferred  that 
it  was  not  the  intention  of  the  testator  to  divide  the  laud 
devised  between  the  grand-daughter  and  her  children. 
The  devise  is  made  upon  the  condition  that  the  grand- 

VOL.  II.  P 


238  CASES   IN  CHANCERY. 


Jones'  Executors  v.  Jones. 


daughter  shall  pay  an  annuity  of  $40  for  the  life  of  another. 
This  alone  is  sufficient  at  the  common  law  to  enlarge  a  life 
estate  to  a  fee  simple.  Baddely  v.  Leppingwell,  3  Burr. 
1533;  Reed  v.  Nation,  2  Mod.  25;  Goodright  v.  Stacker,  5 
T.  R.  13 ;  Andrew  v.  Southouse,  5  T.  R.  292. 

The  grand-daughter  is  also  to  paint  and  keep  in  repair 
the  fence  around  the  testator's  burying  lot.  These  bur- 
thens are  not  a  charge  upon  the  estate  devised,  but  they  are 
a  personal  charge  upon  the  grand-daughter,  being  made 
a  condition  of  the  devise.  The  grand-daughter  was  the 
primary  object  of  the  testator's  bounty.  It  cannot  be  pre- 
sumed that  he  intended  to  place  her  in  a  worse  condition 
as  to  the  property  devised  than  her  children.  But  this 
will  be  the  necessary  result  if  they  divide  the  land  de- 
vised with  their  mother;  for  they  take  their  shares  free 
from  all  encumbrance,  whereas  she  takes  hers  subject  to 
burthens  which  may  be  equal  to  the  whole  value  of  the  land 
devised.  As  the  entire  condition  upon  which  the  devise  is 
made  is  to  be  performed  by  the  grand-daughter,  the  natural 
inference  is  that  the  testator  designed  that  she  should  take  all 
the  property  devised. 

The  testator  had  also,  iu  a  previous  part  of  the  will, 
made  a  large  provision  (in  proportion  to  the  amount  of 
his  estate)  for  the  son  of  his  grand-daughter,  and  had 
carefully  provided  that  he  should  not  come  into  the  en- 
joyment of  it  until  he  attained  the  age  of  twenty-one 
years,  the  income  in  the  meantime  to  be  received  by  his 
mother.  At  the  time  of  the  devise  both  of  the  children 
were  infants  of  very  tender  years.  The  residuary  be- 
quests include  personal  as  well  as  real  estate.  No  pro- 
vision is  made  for  its  investment  or  guardianship  of  the 
property  of  the  infants  during  their  minority,  as  iu  case 
of  the  legacy  specifically  bequeathed.  The  testator, 
having  carefully  provided  that  the  infant  should  not  come 
into  possession  of  the  specific  legacy  till  his  majority,  cannot 
be  presumed  to  have  intended  that  both  the  infants  should 
come  into  the  immediate  possession  of  the  residuary  estate. 


FEBRUARY  TERM,  1861.  239 

Jones'  Executors  v.  Jones. 

I  think,  from  these  considerations,  that  the  testator  designed 
to  give  all  the  property  included  in  the  residuary  clause,  to 
his  grand-daughter,  and  not  to  divide  it  between  her  and  her 
two  living  children.  And  this  conclusion  is  in  accordance 
with  what  would  be  the  natural  desire  and  purpose  of  the 
testator,  viz.,  that  the  estate  should  benefit,  equally,  all  the 
children  of  his  grand-daughter,  as  well  those  after-born  as 
those  who  were  living  at  the  date  of  the  will ;  for  if  the  word 
"children,"  in  the  residuary  clause,  be  taken  as  a  word  of 
purchase,  and  not  of  limitation,  only  the  children  in  esse  at 
the  death  of  the  testator,  can  share  in  the  benefit  of  the 
devise.  They  alone  will  take,  to  the  exclusion  of  all  after- 
born  children.  2  Powell  on  Dev.  302. 

The  word  "children"  being  regarded  as  a  word  of  limita- 
tion, the  question  still  remains  whether  the  testator  used  it  as 
synonymous  with  "heirs"  or  "heirs  of  her  body."  Did  he 
intend  to  give  to  his  grand-daughter  an  estate  iu  fee  or  au 
estate  tail  ? 

As  to  the  personal  estate,  it  is  immaterial  which  construc- 
tion be  adopted,  for  it  is  well  settled  that  if  the  words  of  the 
devise  give  an  estate  tail  only  in  the  land,  they  give  an  abso- 
lute estate  in  the  personalty  included  in  the  same  disposition. 
Donn  v.  Penny,  19  Vesey  545;  Dunk  v.  Ferner,  2  Ross.  & 
M.  557  ;  Simmons  v.  Simmons,  8  Simons  22 ;  2  Williams  on 
Ex'rs  937,  945,  949. 

The  grand-daughter,  therefore,  in  either  event,  will  take  the 
personal  estate  absolutely,  and  she  takes,  also,  a  fee  simple  in 
the  land.  The  residuary  clause  is  an  absolute  disposition  of 
all  his  estate.  Its  language  is,  UI  give,  bequeath,  and 
devise  all  the  rest,  residue,  and  remainder  of  my  real  and 
personal  estate,  to  my  grand-daughter."  There  is  no  devise 
over.  It  is  clear  that  the  testator  parted  with  the  fee  simple 
in  the  lands. 

It  may  be  remarked,  moreover,  that  if  this  estate  of  the 
grand-daughter  were  construed  to  be  an  estate  tail,  she 
would,  by  force  of  the  statute,  (Nix.  Dig.  196,  §  11,)  take 


240:  CASES  IN  CHANCERY. 

Jones'  Executors  v.  Jones. 

only  a  life  estate,  with  remainder  in  fee  to  her  children,  so 
that,  by  construction  and  by  force  of  the  statute,  the  grand- 
daughter would,  in  direct  violation  of  the  well-settled  rule 
of  construction,  take  only  a  life  estate,  although  required,  by 
the  will,  to  pay  an  annuity  for  the  life  of  another. 

II.  The  codicil  is  as  follows:  "I,  David  Jones,  make  this 
codicil  to  my  testament  and  last  will — that  is,  I  sell  unto 
Charles  H.  Smith  my  tavern-house  and  lot,  with  one-third 
of  the  lot  behind  the  barn,  for  the  sum  of  f6950,  provided 
he,  the  said  Charles  H.  Smith,  satisfies  my  executors  as  to 
the  payment  for  the  same." 

The  codicil,  though  very  inartificially  drawn,  was  designed 
to  empower  his  executors  to  convey  the  land  which  the  testa- 
tor had  agreed  to  sell  upon  the  payment,  by  the  vendee,  of 
the  purchase  money,  pursuant  to  the  contract  of  sale.  Upon 
the  payment  of  the  purchase  money  by  the  purchaser,  on  or 
before  the  first  day  of  April  next,  the  executors  will  be 
decreed  to  convey  to  Smith  the  property  specified  in  the 
codicil. 

An  attempt  is  made,  on  the  part  of  the  purchaser,  to 
show,  by  parol,  that  the  agreement  made  by  the  testator,  was 
to  convey,  not  one-third,  as  stated  in  the  codicil,  but  two- 
thirds  of  the  lot  behind  the  barn,  and  that  in  this  par- 
ticular, a  mistake  was  made  by  the  scrivener  who  drew  the 
codicil. 

Tha  evidence  is  clearly  incompetent.  The  terms  of  the 
codicil  are  clear,  and  cannot  be  contradicted  or  altered  by 
parol.  1  Greenl.  on  Ev.,  §  275,  §  325. 

The  deed  must  be  made  pursuant  to  the  terms  of  the  will, 
"  for  the  tavern-house  and  lot  and  one-third  of  the  lot  behind 
the  barn,"  as  it  was  at  the  date  of  the  codicil,  including  the 
part  devised  to  the  wife. 

It  is  competent  to  prove  by  parol,  what  part  of  the  lot  was 
agreed  to  be  conveyed.  This  is  not  contradicting  or  altering 
the  terms  of  the  will,  but  merely  applying  it  to  its  proper 
subject  matter.  1  Greenl.  on  Ev.,  §§  286-7-8. 


FEBRUARY  TERM,  1861.  241 

Hayes  v.  Whitall. 

The  evidence  shows  that  the  part  of  the  lot  agreed  to  be 
conveyed  was  that  part  immediately  in  the  rear  of  and  adjoin- 
ing the  tavern  lot,  and  between  Washington  street  and  the 
line  of  the  lot  devised  by  the  testator  to  his  widow,  and  ex- 
tending westward  to  the  rear  of  the  last-mentioned  lot,  or  so 
far  as  will  constitute  one-third  in  quantity  of  the  entire  lot. 
The  conveyance  must  be  made  accordingly. 


HAYES  AND  WIFE  vs.  WHITALL  and  others. 

1.  When  an  annuity  is  charged  on  real  estate,  the  rale  is,  that  it  does 
not  commence  until  the  devisee  of  such  estate  is  entitled  to  the  possession 
thereof. 

2.  This  principle  ia  applicable  where  a  sum  of  money  is  charged  on 
land  in  which  the  testator  had  only  a  reversion. 

3.  The  lapse  of  twenty  years  without  payment  or  allowance  of  princi- 
pal or  interest  of  a  legacy,  will  raise  a  presumption  of  payment,  but  such 
presumption  may  be  overcome  by  evidence. 

4.  The  wife's  right  of  dower  will  be  protected  as  against  post-nuptial 
mortgages  not  executed  by  her. 

Dudley  and  Attorney-  General,  for  complainants. 
Harrison,  Browning,  and  Carpenter,  for  defendants. 

THE  CHANCELLOR.  The  annuities  charged  upon  the 
real  estate  devised  to  Louis  Whitall,  by  the  will  of  his 
father,  John  G.  Whitall,  commence  from  the  time  that  the 
devisee  became  twenty-one.  By  the  terms  of  the  will,  the 
devisee  is  to  possess  the  estate  at  twenty-one,  subject  to  the 
annuities  given  to  the  widow,  daughters,  and  brother  of  the 
testator.  The  rule  in  such  cases  is,  that  the  annuity  does 
not  commence  till  the  devisee  has  the  estate  charged  with 
the  annuity  in  possession.  Ager  v.  Pool,  Dyer  371  6; 
Turner  v.  Probyn,  1  Ansbitiher  66. 


242  CASES  IN  CHANCERY. 

Hayes  v.  Whitall. 

Both  Mr.  Powell  and  Mr.  Jarman  deem  the  same  prin- 
ciple applicable  where  a  sum  of  money  is  charged  011  land  in 
which  the  testator  has  only  a  reversion,  and  that  the  money 
is  not  to  be  raised  until  the  reversion  falls  into  possession. 
2  Powell  on  Dev.  236 ;  1  Jarman  on  Wills  757. 

That  this  construction  is  in  accordance  with  the  intent 
of  the  testator  is  very  clear  from  the  provisions  of  the 
will.  During  the  minority  of  the  devisee,  and  until  his 
estate  vests  in  possession,  the  executrix  is  to  apply  the 
rents  of  the  farm  to  the  payment  of  the  annuity  to  the 
testator's  brother.  It  is  clear  that  that  annuity  could  not 
be  a  charge  upon  the  estate  of  the  devisee.  The  residue 
of  the  income  of  the  farm  during  the  minority  of  the 
devisee  is  to  be  applied  to  the  support  of  the  testator's 
wife  and  children,  viz.,  of  the  annuitants  themselves,  and 
of  the  devisee  upon  whose  estate  the  annuities  are  charged. 
The  testator  could  not  have  intended  that  the  estate  de- 
vised to  his  infant  son  should  be  charged  with  the  pay- 
ment of  annuities  before  he  came  to  the  possession  of  the 
estate,  when  he  was  without  other  means  of  paying  them, 
and  dependent  for  his  support  during  his  minority  upon  a 
provision  made  by  the  will. 

2.  The  annuity  of  $18,  bequeathed  to  the  daughters  of  the 
testator  for  five  years  after  the  death  of  Mark  Whitall,  is  not 
a  charge  upon  the  estate  devised.  The  admission  in  the 
answer  of  the  devisee  upon  that  subject  cannot  prejudice  the 
rights  of  the  encumbrancers.  It  is  proper  that  the  answer 
in  this  particular  should  be  amended  in  accordance  with  the 
suggestion  made  upon  the  hearing. 

The  lapse  of  twenty  years  without  payment  or  demand 
of  principal  or  interest  on  account  of  the  legacy,  will  raise 
a  presumption  of  payment.  It  is,  however,  but  a  pre- 
sumption, and  not  conclusive.  In  Ex\s  of  Wanmaker  v. 
Van  Buskirk,  Saxton  693,  the  situation  of  the  parties  was 
held  sufficient  to  repel  the  presumption  of  payment  of  a 
mortgage  arising  from  the  lapse  of  more  than  twenty 
years.  In  JRavenscroft  v.  Frisby,  1  Collyer  16,  legacies 


FEBRUARY  TERM,  1861.  243 

Hayes  v.  Whitall. 

charged  upon  land  were,  under  the  circumstances,  held  to 
be  payable  notwithstanding  the  lapse  of  more  than  forty 
years  from  the  testator's  death  to  the  filing  of  the  bill. 
The  first  payment  on  account  of  the  annuity  of  $50  fell 
due  in  December,  1836.  The  legacy  of  $300  was  paya- 
ble in  May,  1837.  The  bill  charges  that,  on  the  thirteenth 
of  October,  1846,  the  complainant  gave  a  receipt  for  $360 
paid  by  the  defendant,  Louis  Whitall,  on  account  of  the 
annuities  and  legacies  claimed  by  the  complainant.  That 
$103  were  paid  on  account  subsequent  to  that  time. 
Louis  Whitall,  by  his  answer,  admits  that  all  these  pay- 
ments were  made  on  account  of  'said  annuities  and  lega- 
cies, and  alleges  that  further  payments  were  made,  both 
before  and  after  1846,  on  account  of  said  annuities  and  lega- 
cies. 

There  does  not  appear,  from  the  evidence,  to  have  been 
any  specific  appropriation  of  these  payments,  either  by 
the  party  receiving  or  paying  the  money,  or  any  ground 
upon  which  the  court  can  appropriate  the  payment  exclusively 
to  the  annuity  to  the  exclusion  of  the  legacy.  They  must  be 
appropriated,  as  they  are  claimed  by  the  bill,  and  admitted 
by  the  answer  to  have  been  intended  to  be,  both  to  the  an- 
nuity and  the  legacy  of  $300.  There  can,  therefore,  be  no 
presumption  of  the  payment  of  either  on  the  ground  of  lapse 
of  time  without  payment  on  account. 

There  can  be  no  question  in  regard  to  the  annuity  to 
the  widow  of  the  testator,  as  that  is  acknowledged  to 
have  been  paid,  and  the  claim  released  up  to  the  25th  of 
March,  1859. 

From  the  great  number  of  mortgages  upon  the  estate, 
it  will  probably  be  found  necessary  to  sell  the  entire  estate  to 
satisfy  the  encumbrances.  If  so,  the  land  will  be  sold  sub- 
ject to  the  charge  of  the  annuities  hereafter  to  become  paya- 
ble. The  proceeds  of  the  sale  will  be  appropriated  to  sat- 
isfy— first,  the  arrears  of  the  annuities  and  the  legacies  charged 
upon  the  land,  and  then  the  mortgage  debts  in  the  order  of 
their  priority.  Graves  v.  Hicks,  11  Simons  551  ;  2  Roper 
on  Leg.  1483. 


244  CASES  IN  CHANCERY. 

Vanderhaize  v.  Hugues. 

Louis  Whitall's  wife  is  living.  Her  interest  in  the  prem- 
ises must  he  protected.  She  was  married  on  the  23d  of  Jan- 
uary, 1844.  Three  of  the  mortgages  were  executed  prior  to 
that  date.  The  wife  did  not  join  in  the  mortgages  executed 
after  the  marriage.  Her  dower  right  is  subject  to  the  encum- 
brance of  the  legacies  and  annuities  charged  upon  the  land 
and  remaining  unpaid,  and  also  to  the  encumbrance  of  the 
first  three  mortgages.  If  the  premises  subject  to  her  claim 
will  bring  enough  to  satisfy  the  prior  encumbrances  they 
should  be  so  sold.  If  it  is  necessary  to  sell  the  land  clear  of 
the  claim  of  the  wife,  in  order  to  satisfy  the  prior  encum- 
brances, the  surplus  must  be  brought  into  court  in  order  that 
her  interest  may  be  properly  secured. 

CITED  in  Wheeler  v.  Kirtland,  12  C*.  E.  Gr.  535. 


NOEL  VANDERHAIZE  vs.  CHARLES  A.  HUGUES  et  ux. 

1.  A  deed  of  conveyance,  absolute  in  its  terms,  given  to  secure  a  loan  of 
money,  is  a  mortgage,  and  the  right  of  redemption  exists,  although  the 
money  was  not  re-paid  at  the  time  agreed  upon. 

2.  Once  a  mortgage  always  a  mortgage,  is  a  maxim  of  equity,  to  which 
there  is  no  exception. 

3.  The  right  of  redemption  is  an  inseparable  incident  of  which  the  mort- 
gagor cannot  deprive  himself,  even  by  an  express  covenant. 


Boyd  and  Lyons,  for  defendant. 
Winfield,  for  complainants. 

THE  CHANCELLOR.  The  material  facts,  so  far  as  regards 
the  present  application,  are  not  disputed.  The  bill 
charges,  and  the  answer  admits,  that  although  the  con- 
veyance of  the  premises  in  dispute  made  by  the  com- 
plainant to  the  defendant  is  absolute  upon  its  face,  it  was 
in  reality  a  mortgage,  being  given  to  secure  the  re-pay- 


FEBRUARY  TERM,  1861.  245 

Vanderhaize  v.  Hugues. 

ment  of  $3000,  by  the  complainant  to  the  defendant,  with 
interest,  in  three  years  from  date.  The  defeasance  is  in 
writing,  and  there  is  no  room  for  dispute  as  to  its  terms. 
The  complainant  is  entitled  to  redeem.  His  bill  is  filed 
for  that  purpose.  The  injunction  was  granted  to  restrain 
the  defendant  from  conveying  the  property  pending  the 
suit.  As  the  deed  is  absolute  upon  its  face,  a  sale  of  the 
premises  by  the  defendant  to  a  bona  fide  purchaser  without 
notice  of  the  defeasance,  would  vest  the  title  in  the  pur- 
chaser free  from  the  complainant's  equity,  and  deprive 
him  of  the  right  of  redemption.  Cornell  v.  Pierson,  4  Halst. 
Ch.  484. 

It  is  proper,  therefore,  that  the  defendant  should  be 
restrained  from  alienation  until  the  complainant's  rights  are 
adjusted  and  determined. 

The  defendant's  answer  is  based  on  the  assumption  that 
although  the  deed  was  originally  intended  as  a  mortgage,  yet 
the  title  in  itself  being  absolute,  and  the  complainant  having 
failed  to  pay  the  debt  at  the  time  stipulated  in  the  defea- 
sance, his  right  to  redeem  is  gone.  This  is  an  error. 

Once  a  mortgage  always  a  mortgage,  is  a  maxim  of  equity 
to  which  there  is  no  exception.  Newcomb  v.  Bonham,  1 
Vernon  8 ;  Clark  v.  Henry,  2  Cowen  324. 

The  right  of  redemption  is  an  inseparable  incident,  and 
the  mortgagor  cannot  deprive  himself  of  the  right  to 
redeem,  even  by  an  express  covenant  for  that  purpose.  4 
Kent's  Com.  143;  1  Vemon  8  ;  1  Powell  on  Mort.  116,  n; 
Youle  v.  Richards,  Saxton  534 ;  Crane  v.  Bonnell,  1  Green's 
Ch.  264 ;  Van  Wagner  v.  Van  Wagner,  3  Halst .  27 ;  Henry 
v.  Davis,  7  Johns.  Ch.  R.  40. 

The  right  may  be  surrendered  by  the  mortgagor,  (Sax- 
ton  534 ;  4  Kent's  Com.  143),  or  be  barred  by  foreclosure 
or  by  lapse  of  time.  1  Vernon  8,  (Raithby's  ed.}  note  1 ;  1 
Mad.  Ch.  619. 

There  is  no  distinction  in  this  respect  between  a  mort- 
gage iu  "usual  form  and  an  absolute  conveyance  made  as 
a  mere  security  for  money.  Every  contract  for  the  secu- 


246  CASES  IN  CHANCERY. 

Davison  v.  Davison. 

rity  of  money  by  the  conveyance  of  real  estate  to  the  lender, 
not  made  in  contemplation  of  an  eventual  arrangement  of 
property,  is  in  equity  deemed  a  mortgage.  1  Powell  on 
Mort.  116. 

The  motion  to  dissolve  the  injunction  is  denied,  with  costs. 


JAMES  DAVISON  vs.  JAMES  W.  DAVISON  and  others. 

1.  It  is  a  well-settled  rule,  that  where  services  are  rendered  gratuitously 
or  without  any  view  to  compensation,  but  in  the  hope  of  receiving  a  legacy 
or  devise  from  the  person  to  whom  the  services  are  rendered,  the  person 
rendering  the  services  can  recover  no  compensation  therefor. 

2.  A  father  made  a  verbal  agreement  with  his  youngest  son  that  if  he 
would  remain  and  work  his  farm,  and  support  and  maintain  him  during 
his  life,  that  upon  his  death  the  son  should  have  the  farm.     The  son 
remained  and  worked  the  farm  for  upwards  of  fifteen  years,  to  the  satis- 
faction of  the  father,  who  then  becoming  displeased  with  him,  conveyed 
the  farm  to  his  two  other  sons,  in  consideration  of  maintenance  for  life. 
Held— 

3.  That  as  it  appeared  that  the  complainant's  services  were  rendered 
to  his  father  not  gratuitously,  but  upon  a  distinct  understanding  between 
himself  and  his  father  that  he  should  be  compensated  for  his  services, 
and  that  the  material  part  of  that  agreement  was  that  upon  his  father's 
death,  provided  he  continued  to  serve  and  provide  for  him  during  his 
life,  he  should   receive  the  homestead   farm,  that   the  agreement  thus 
proved  was  valid  in  law. 

4.  That  part  performance  took  the  case  out  of  the  operation  of  the 
statute  of  frauds. 

6.  The  bill  in  this  case  permitted  to  be  amended  after  final  hearing,  so 
as  to  make  the  contract  alleged  agree  with  that  proved. 


Leupp,  for  complainant. 
Speer,  for  defendants. 

THE  CHANCELLOR.  The  bill  charges,  that  in  the  year 
1849,  the  defendant,  James  W.  Davison,  being  seized 
and  possessed  of  his  homestead  farm  of  one  hundred  acres, 


FEBRUARY  TERM,  1861.  247 


Davison  T.  Davison. 


of  the  value  of  $60CO,  and  money  at  interest,  amounting  to 
less  than  $1000,  agreed  with  the  complainant,  who  is  the 
youngest  son  of  the  said  defendant,  to  assure  to  the  com- 
plainant the  said  farm  and  money,  upon  the  undertaking  of 
the  complainant  to  afford  his  father  and  mother  a  comfort- 
able maintenance  for  their  lives  and  the  life  of  the  survivor 
of  them,  and  to  make  advances  to  his  four  daughters,  viz.,  to 
the  three  eldest  $700  each,  and  to  the  youngest  $1200  ;  that 
by  the  terms  of  the  agreement  the  proceeds  of  the  farm,  as 
well  as  the  principal  of  the  money  at  interest,  was  to  belong 
to  the  complainant;  that  relying  upon  the  faithful  perform- 
ance of  the  agreement  by  his  father,  the  complainant  entered 
into  the  contract,  and  immediately  entered  upon  the  perform- 
ance thereof. 

That  he  has  faithfully  performed  the  said  agreement  on 
his  part  by  the  cultivation  and  improvement  of  the  farm,  by 
the  payment  of  the  said  portions  to  his  sisters,  by  making 
permanent  and  valuable  improvements  upon  the  farm,  and 
by  affording  a  comfortable  maintenance  to  his  parents  till 
the  death  of  his  mother,  and  to  his  father  since  her  decease, 
as  long  as  he  was  permitted  to  do  so,  and  that  by  reason 
thereof  he  became  justly  and  legally  entitled  to  the  farm 
upon  the  death  of  his  father,  he  continuing,  as  he  is  able  and 
willing  to  do,  to  afford  a  comfortable  maintenance  to  his 
father  during  the  residue  of  his  life. 

The  bill  prays  that  the  contract  may  be  established  and 
performed  on  the  part  of  James  W.  Davison ;  that  the 
deed  made  by  the  said  James  \V.  Davison  to  his  sons, 
Reuben  and  Joseph,  may  be  vacated  upon  just  and  equi- 
table terms ;  or  if  the  contract  cannot  be  enforced,  that 
the  defendant  may  be  decreed  to  account  for  the  services 
of  the  complainant,  and  to  pay  him  what  may  be  found 
due  upon  such  accounting,  and  for  an  injunction  to  re- 
strain proceedings  at  law.  Upon  filing  the  bill  an  injunc- 
tion issued,  which  was  afterwards  dissolved  upon  the 
coming  in  of  the  defendants'  answer,  which  denied  the 
equity  of  the  bill. 


248  CASES  IN  CHANCERY. 

Davison  v.  Davison. 

The  evidence,  which  is  very  voluminous,  satisfactorily 
establishes  the  following  facts,  which  are  material  to  a 
proper  understanding  and  disposition  of  the  rights  of  the 
parties.  In  the  year  1850,  the  defendant,  James  W.  Da- 
vison, was  seized  and  possessed  of.  his  homestead  farm,  in 
the  county  of  Middlesex,  containing  about  one  hundred 
acres,  upon  which  he  resided  with  his  wife  and  some  of 
his  children.  His  four  oldest  sons  had  all  received  ad- 
vancements from  their  father,  had  left  home,  and  were 
married  and  settled.  James,  the  youngest  son,  who  came 
of  age  in  1844,  was  unmarried,  and  remained  upon  the 
farm  with  his  father.  He  continued  with  him,  having 
charge  of  the  farm,  laboriously  engaged  in  its  cultivation 
and  management,  until  August,  1859.  During  this  period 
advances  were  made  by  the  father  to  three  of  his  daugh- 
ters, who  were  married  and  had  left  home,  so  that  previ- 
ous to  September,  1856,  his  wife  having  died,  he  was  left 
upon  the  farm  with  his  youngest  son,  James,  the  com- 
plainant, and  his  youngest  daughter,  Ida.  All  his  other 
children  were  provided  for  and  settled  in  life.  In  the 
spring  of  1857,  James  having  married,  a  small  dwelling- 
house  was  built  for  his  accommodation  upon  the  home- 
stead farm,  the  father  and  daughter  continuing  to  occupy 
the  mansion-house.  In  August,  1859,  a  painful  family 
difficulty  arose  between  the  father  and  the  daughter-iu- 
law,  which  led  to  litigation,  and  ended  in  the  expulsion 
of  the  complainant  from  the  farm.  On  the  twentieth  of 
September,  1859,  soon  after  the  difficulty  with  the  com- 
plainant, the  father  conveyed  to  his  two  sons,  Reuben  and 
Joseph,  in  fee  simple  his  homestead  farm  with  usual  co- 
venants. The  consideration  of  the  deed,  as  therein  ex- 
pressed, is  natural  love  and  affection,  the  sum  of  $5  paid 
by  each  of  the  grantees,  and  an  engagement 4  on  their 
part  to  maintain  him  for  the  residue  of  his  life.  The 
grantees  executed  an  agreement  of  even  date,  in  consid- 
eration of  the  conveyance,  to  maintain  their  father  for 
the  residue  of  his  life,  to  pay  the  expenses  of  his  last  sick- 


FEBRUARY  TERM,  1861.  249 

Davison  v.  Davison. 

ness  and  his  funeral  expenses,  including  a  decent  head-stone 
to  be  placed  at  the  head  of  his  grave.  On  the  day  after  the 
date  of  these  remarkable  instruments,  a  notice  was  served 
upon  the  complainant  by  His  father,  or  in  his  name,  in  these 
words : 
"To  Mr.  James  Davison,  junior: 

"  Take  notice  that  your  service  is  not  wanting  on  my  farm, 
now  conveyed  away  to  my  two  sons,  Reuben  and  Joseph 
Davison ;  ami  I  have  given  them  immediate  possession  of 
the  same;  and  if  you  continue  thereon,  I  shall  hold  you  as  a 
trespasser,  and  proceed  against  you  according  to  law;  and, 
further,  I  shall  not  want  any  more  of  your  help  to  gather  in 
my  crop,  at  present  on  said  farm." 

Refusing  to  give  up  possession,  an  ejectment  was  brought 
by  the  brothers.  The  complainant  sought  to  protect  himself 
by  injunction,  but  the  defendants,  by  their  answer,  denying 
all  the  equity  of  the  bill,  the  injunction  was  dissolved,  and 
the  complainant  was  turned  out  of  possession.  And  thus, 
&fter  fifteen  years'  labor  from  his  attaining  his  majority, 
in  his  father's  service,  during  nine  of  which  he  had  the 
entire  coetrol  and  management  of  the  farm,  engaged  faith- 
fully and  laboriously,  and,  as  appears  by  the  evidence,  to  his 
father's  entire  satisfaction,  having  received  no  compensation 
whatever  for  his  services,  beyond  a  bare  subsistence,  he  ia 
turned  out  of  his  home  without  a  dollar's  compensation,  and, 
so  far  as  appears,  without  the  means  of  subsistence.  And,  as 
if  to  deprive  him  of  the  possibility  of  obtaining  redress,  the 
title  of  the  farm  is  immediately  conveyed  to  two  of  the  com- 
plainant's brothers,  the  goods  and  chattels  converted  into 
money,  and  thus  the  entire  real  and  personal  estate  of  the 
father  placed  beyond  the  reach  of  legal  process.  The  case, 
in  its  leading  features,  is  a  most  extraordinary  one.  The 
father,  as  appears  not  only  by  the  testimony  of  numer- 
ous witnesses,  but  from  his  express  recital  in  the  deed  to 
his  sons  Reuben  and  Joseph,  was  in  old  age,  infirm,  and 
unable  to  take  care  of  himself.  He  needed  the  services 


250  CASES  IN  CHANCERY. 

Davi«on  v.  Davison. 

and  assistance  of  his  children.  He  had,  long  since,  made 
advancements  to  all  hia  children,  except  his  youngest  son 
and  daughter,  who  remained  at  home  with  him,  attending  to 
his  affairs  and  ministering  to  his  comfort.  By  his  will,  exe- 
cuted in  September,  1856,  he  declared  that  he  had  given  all 
his  sons,  except  the  complainant,  their  portions  in  his  per- 
sonal and  real  estate,  and  had  made  advancements  to  hia 
elder  daughters,  and  therefore  gave  the  whole  of  his  real  and 
personal  estate  to  his  two  youngest  children,  who  were  at 
home  with  him,  the. farm  being  devised  to  the  complainant. 
And  yet,  within  three  years  thereafter,  without  any  failure 
of  service  on  the  part  of  the  complainant,  he  is  turned  out 
of  possession  without  remuneration  for  his  services,  and  the 
entire  real  estate  of  the  father  transferred  to  his  brothers. 
Whether  this  change  of  purpose  was  produced  by  the  painful 
difficulty  between  the  father  and  the  wife  of  the  complain- 
ant, or  by  the  contrivance  of  the  sons  who  have  obtained 
possession  of  the  property,,  or  by  the  efforts  of  the  complain- 
ant to  defend  his  wife's  character,  is  not  material  for  the 
purpose  of  thia  inquiry.  That  it  is  a  case  of  peculiar  and 
extreme  hardship  upon  the  complainant,  cannot  be  ques- 
tioned. But  does  he  stand  in  a  situation  which  entitles  him 
to  relief  in  this  court?  It  is  insisted,  on  the  part  of  the 
defendants,  that  the  services  of  the  complainant  were  ren- 
dered to  his  father  gratuitously,  and  upon  the  mere  hope  of 
having  some  provision  made  for  him  by  his  father's  will. 
If  so,  he  is  clearly  entitled  to  no  relief.  The  rule  is  well 
settled  that  where  services  are  rendered  gratuitously,  or  with- 
out any  view  to  compensation,  but  in  the  hope  of  receiving 
a  legacy  or  devise  from  the  person  to  whom  the  services  are 
rendered,  the  person  rendering  the  services  can  recover  no 
compensation.  Osborne  v.  Governors  of  Guys  Hospital,  2 
Strange  728 ;  Le  Sage  v.  Cou»smaker,  1  Esp.  187 ;  Little  v. 
.Dawson,  4  Dal.  111. 

The  complainant  claims,  and  I  think   the  evidence  satis- 
factorily proves,  that  these  services  by  him   were  not  re»- 


FEBRUARY  TERM,  1861.  251 

Davison  v.  Davison. 

dered  gratuitously,  but  upon  the  distinct  understanding 
between  the  father  and  son  that  the  son  should  receive 
the  farm  upon  the  father's  death.  It  is  expressly  proved 
by  two  witnesses,  (in  addition  to  the  testimony  of  the  com- 
plainant himself,)  that  the  father  declared  that  lie  had 
agreed  with  James  that  he  should  have  the  farm  upon  his 
death.  It  is  proved,  moreover,  that  the  father  declared, 
speaking  of  the  security  of  the  provision  made  for  his  son, 
that  the  will  could  not  be  broken,  that  a  will  was  as  good 
as  a  deed,  and  that  the  reason  that  he  did  not  make  a 
deed  was,  that  he  had  been  advised  by  a  friend  not  to  put 
all  his  property  out  of  his  hands  in  his  lifetime.  This 
evidence  derives  strong  confirmation  from  the  fact  that 
the  father  was  in  a  situation  to  need  the  services  of  the 
son  ;  that  all  his  other  sons  had  been  advanced,  and  had 
received  all  the  provision  which  he  designed  to  make 
either  from  his  real  or  personal  estate;  that  he  had,  in  fact, 
devised  the  farm  to  the  complainant;  that  that  will  was 
in  existence  at  the  commencement  of  this  difficulty,  and, 
as  appears  by  the  evidence,  has  been  destroyed  during  the 
progress  of  (he  suit,  although  the  father,  by  his  answer, 
utterly  denied  that  any  such  will  had  ever  been  made ; 
and,  lastly,  from  the  fact  that,  as  soon  as  the  friendly  inter- 
course between  the  complainant  and  his  father  was  bro- 
ken off,  the  father  deeded  the  farm  to  his  sons  Reuben 
and  Joseph,  upon  almost  the  identical  contract  which  the 
complainant  alleges  his  father,  some  years  previously,  had 
made  with  him.  If  the  fact  that  the  services  of  the  com- 
plainant were  not  performed  gratuitously  needs  further 
proof,  it  will  be  found  in  the  fact,  clearly  proved  by  the 
defendant's  own  witnesses,  that  he  was  offered  by  his  father, 
$2000  to  abandon  an  action  for  slander,  and  in  satisfaction 
of  his  interest  in  the  farm.  If  he  had  no  contract  witli 
his  father,  and  no  claim  for  his  services,  it  is  difficult  to  un- 
derstand why  so  large  a  sum  should  be  offered  in  satisfaction 
of  his  claim. 

I  entertain   no  doubt,  from   the  evidence,  that  the  com- 


252  CASES  IN  CHANCERY. 

Davison  v.  Davison. 

plainant's  services  were  rendered  to  his  father  not  gratu- 
itously, but  upon  a  distinct  understanding  between  himself 
and  his  father  that  he  should  be  compensated  for  his  ser- 
vices, and  that  the  material  part  of  that  agreement  was 
that,  upon  his  father's  death,  provided  he  continued  to  serve 
and  provide  for  him  during  life,  he  should  receive  the  home- 
stead farm. 

The  agreement  thus  proved  is  valid  in  law.  Jacobson  v. 
Ex'rs  of  Legrange,  3  J.  R.  199 ;  Paterson  v.  Paterson,  13  J. 
R.  379  ;  Cliitty  on  Con.  (9th  ed.)  557,  and  cases  cited  in  note 
]  •  and  may  be  enforced  in  equity.  Gary  v.  Ex'rs  of  James, 
4  Dess.  185 ;  Johnson  v.  Hubbell,  2  Stockton  332. 

That  the  contract  was  by  parol,  and  not  in  writing, 
while  it  greatly  increases  the  difficulty  of  proving  its 
terms,  constitutes  no  valid  objection  to  its  enforcement. 
There  has  been  a  part  performance  on  the  part  of  the 
complainant.  He  served  his  father  several  years  upon 
the  faith  of  the  contract,  and,  as  the  evidence  shows,  faith- 
fully, and  to  his  father's  satisfaction.  Part  performance 
takes  the  case  out  of  the  operation  of  the  statute  of 
frauds. 

The  contract  is  not  proved  precisely  as  laid  in  the  com- 
plainant's bill.  The  complainant  charges  that,  by  the 
agreement,  he  was  to  receive  not  only  the  real  estate,  but 
also  the  personal  estate  of  his  father,  upon  making  certain 
advances  to  his  daughters.  The  evidence,  so  far  as  the 
personal  estate  is  concerned,  does  not  prove  this  contract. 
The  bill  must  be  amended  so  as  to  conform  to  the  con- 
tract as  proved.  It  may  be  done  at  this  stage  of  the  cause 
after  hearing  on  bill,  answer,  and  evidence.  Bellows  v. 
Stone,  14  New  Hamp.  175.  No  embarrassment  can  result 
from  it.  It  is  not  a  case  where  the  defendant  sets  up  and 
proves  a  different  contract  from  that  relied  on  by  the  com- 
plainant. There  the  defendant  is  entitled  to  a  decree  for 
the  performance  of  the  contract  as  he  proves  it.  Story's 
Eq.  PL,  §  394. 
h  Here  the  defendant  has  utterly  denied  the  existence  of 


FEBRUARY  TERM,  1861.  253 


Marsh  v.  Lasher. 


any  contract.  The  contract,  as  proved,  is  variant  from  that 
charged  in  the  bill.  Before  decree  there  must  be  an  amend- 
ment. Story's  Eq.  PI.,  §  394,  note  2. 

Upon  the  bill  being  amended  the  court  will  decree  that  the 
contract,  as  proved,  be  established;  that  the  complainant, 
upon  the  performance  of  the  agreement  on  his  part,  or  upon 
his  readiness  to  perform  if  prevented  by  the  acts  of  the  de- 
fendants, will  be  entitled  to  the  farm  upon  the  death  of  the 
father;  that  the  deed  executed  by  the  father  to  his  sous, 
Reuben  and  Joseph,  be  set  aside  as  fraudulent  and  void  as 
against  the  complainant,  and  that  the  defendants,  and  each, 
of  them,  be  restrained  from  aliening,  charging  or  encumber- 
ing the  said  farm. 

It  is  eminently  desirable  that  this  controversy  should  be 
amicably  adjusted,  and  the  court  repeats  the  hope  expressed 
on  the  argument,  that  a  settlement  may  be  effected  between 
the  parties  without  further  action  on  the  part  of  the  court. 
The  father  is  entitled  to  the  enjoyment  of  the  farm  during  his 
life.  No  present  decree  for  the  specific  performance  of  the 
contract  can  be  made.  The  complainant  is  entitled  to  the 
farm  only  upon  the  death  of  his  father.  By  the  terms  of  the 
contract,  is  to  have  the  management  of  the  farm  and  to  pro- 
vide for  his  father  during  his  life.  If  the  father  refuses  to 
accept  the  services  of  the  complainant,  and  no  amicable  ad- 
justment can  be  made,  further  directions  will  be  given  for 
the  management  of  the  farm  and  the  support  of  the  father 
during  his  life. 


JOHN  T.  MARSH  vs.  JONAS  S.  LASHER  and  wife. 

1.  A  decree  will  not  be  opened  on  the  unsupported  affidavit  of  a  defend- 
ant that  the  complainant  verbally  agreed  not  to  prosecute  the  action. 

2.  Where  a  defendant  is  asking,  as  a  matter  of  favor,  to  be  permitted  to 
defend,  neither  a  court  of  law  or  of  equity  will  grant  the  request  if  the  de- 
fence  rests  on  the  ground  of  usury. 

VOL.  ii.  Q 


254  CASES  IN  CHANCERY. 

« 

Marsh,  v.  Lasher. 

3.  Usury  is  not  regarded  as  an  equitable  defence. 

4.  A  loan  made  at  seven  per  cent,  on  8th  May,  1856,  the  lender  living 
in  Essex,  and  the  borrower  in  Middlesex,  the  land  lying  in  the  latter 
county,  held  not 'to  be  usurious  as  the  law  then  stood. 

Shafer,  for  complainant. 
JLeupp,  for  defendants. 

THE  CHANCELLOR.  A  final  decree  for  foreclosure  and 
sale  of  mortgaged  premises  was  made  in  this  cause  on  the 
17th  day  of  November  last.  A  fieri  facias  was  thereupon 
issued,  and  the  premises  advertised  for  sale  on  the  4th  of 
April.  The  sale  having  been  adjourned,  on  the  18th  of 
April,  an  order  was  made  requiring  the  complainant  to 
show  cause  why  the  execution  should  not  be  set  aside, 
the  decree  opened,  and  the  defendant  admitted  to  answer. 
The  order  was  based  upon  an  affidavit  of  the  defendant 
stating  that  after  the  service  of  the  subpcena  the  com- 
plainant had  promised  a  stay  of  all  further  proceedings,  and 
that  he  had  a  full  and  legal  defence  to  make  to  the  bill  upon 
the  merits. 

The  application  rests  upon  two  grounds. 

1.  That  he  was  prevented  from  filing  an  answer  by  the 
fraudulent  conduct  of  the  complainant. 

2.  That  he  has  a  defence  to  the  bill  upon  the  merits. 

The  defendant  swears  that  the  complainant  told  him, 
soon  after  the  subpoena  was  served,  that  he  would  stay  all 
further  proceedings  in  the  suit,  and  give  the  defendant  an 
opportunity  of  making  sale  of  the  premises.  The  proof 
rests  solely  upon  the  affidavit  of  the  defendant.  There  is 
no  concurring  testimony  and  no  corroborating  circum- 
stance to  sustain  the  averment.  An  enrolled  decree, 
regularly  made,  will  not  be  opened  upon  the  unsupported 
affidavit  of  a  defendant  that  the  complainant  verbally- 
agreed  not  to  prosecute  the  action.  The  rights  of  the 
complainant  under  the  decree  ought  not  to  be  disturbed, 
except  upon  more  satisfactory  evidence.  The  rule  of  our 


FEBRUARY  TERM,  1861.  255 

Marsh  v.  Lasher. 

Supreme  Court  has  long  been  to  disregard  all  admissions  or 
agreements  made  out  of  court  by  parties  or  their  attorneys, 
in  respect  to  the  conducting  of  the  suit,  and  not  reduced  to 
writing,  and  subscribed  by  the  persons  making  it.  The 
policy  of  the  rule  is  obvious.  It  points  to  the  imminent 
danger  of  making  the  rights  of  parties,  in  the  conducting  of 
a  suit,  depend  upon  the  memory,  the  truthfulness,  or  the 
accuracy  of  an  opponent  whose  feelings  or  passions  are 
excited  by  self-interest  and  the  excitement  of  litigation.  The 
principle  will  apply  with  greater  force  against  permitting  a 
party  to  rid  himself  of  a  decree  regularly  obtained  by  his 
statement,  of  the  admission  of  an  adversary,  made  months 
previously,  resting  solely  in  his  memory. 

The  statement  of  the  defendant  is  not  only  uncorroborated- 
by  any  other  evidence  in  the  case,  but  it  is  expressly  denied 
by  the  complainant.  It  is  remarkable,  moreover,  that  the 
defendant  was  present  on  the  day  on  which  the  property  was 
first  advertised  and  offered,  and  neither  then  or  before,  made 
any  complaint  of  fraud  or  surprise  in  obtaining  the  decree. 
There  is  a  total  failure  of  evidence  to  support  the  first  ground 
of  complaint,  viz.,  that  the  decree  was  obtained  by  fraud  or 
surprise.  If  admitted  to  answer,  it  must  be  on  the  second 
ground,  viz.,  a  defence  upon  the  merits.  The  court  lends  a 
ready  ear  to  applications  for  relief,  if  the  defendant  has,  by 
misapprehension  or  mistake,  been  deprived  of  the  opportunity 
of  making  defence. 

The  only  defence  disclosed  by  the  evidence,  is  an  allega- 
tion that  the  mortgage  is  founded  on  a  usurious  contract. 
The  decided  objection  to  this  ground  of  relief  is,  that 
usury  is  not  regarded  as  an  equitable  defence,  and  that 
where  a  defendant  is  asking,  as  a  matter  of  favor,  to  be  per- 
mitted to  defend  on  the  ground  of  usury,  neither  a  court  of 
law  or  of  equity  will  grant  the  favor.  It  is  too  late  to  dis- 
cuss the  reason  or  policy  of  the  rule.  It  is  as  well  settled 
as  any  rule  of  practice  can  be,  aud  there  is  no  good  reason  to 
disturb  it. 


256  CASES  IN  CHANCERY. 

Marsh  v.  Lasher. 

But  if  the  defence  were  admissible,  the  evidence  totally 
fails  to  prove  that  the  contract  is  usurious. 

The  bond  and  mortgage  are  dated  on  the  8th  of  May, 
1856,  and  bear  interest  at  seven  per  cent.  The  complainant 
then  lived  in  Essex,  the  defendant  in  Middlesex.  The  land 
is  in  Middlesex.  As  the  law  stood  at  the  date  of  the  contract, 
the  parties  were  authorized  to  agree  for  interest  at  seven  per 
cent.  Nix.  Dig.  374,  §  10. 

It  was  immaterial  where  the  land  lay,  or  where  the  con- 
tract was,  in  fact,  made. 

Upon  the  face  of  the  written  instruments,  there  is  no 
usury  in  the  contract.  The  defendant  alleges  that  the  loan 
was  made  in  pursuance  of  a  contract  made  some  months  pre- 
vious to  the  date  of  the  mortgage,  and  at  a  time  when  both 
parties  lived  in  Middlesex.  The  fact  is  denied  by  the  com- 
plainant, but  if  it  were  established,  it  would  not  prove  the 
mortgage  usurious.  Admit  that  the  parties  entered  into  an 
agreement  for  a  loan  of  money  at  a  usurious  rate  of  interest, 
on  the  first  of  March,  both  parties  then  living  in  Middlesex, 
the  contract  was  simply  void — neither  party  was  bound  by 
it.  On  the  8th  of  May,  a  valid  contract  was  entered  into — 
the  bond  and  mortgage  were  given  for  a  lawful  rate  of 
interest.  It  will  never  be  presumed  that  a  lawful  contract 
was  entered  into,  in  pursuance  of  a  previous  corrupt  and 
unlawful  agreement. 

The  motion  to  open  the  decree  is  denied,  and  the  rule  to 
show  cause  discharged,  with  costs.  All  the  depositions  in 
relation  to  the  value  of  the  premises,  must  be  suppressed  as 
irrelevant.  In  taxing  the  coats,  no  allowance  will  be  made 
for  that  part  of  the  testimony. 

ClTXD  in  Vanderveer  v.  Hdcomb,  7  C.  E.  Or.  658. 


FEBRUARY  TERM,  1861.  257 


Pence  v.  Pence. 


CLARISSA  PENCE  and  others  vs.  JACOB  PENCE  and  others. 

1.  On  a  bill  filed  for  an  account  and  to  execute  the  trust  created  by  a 
deed  absolute  on  its  face,  but  which  in  point  of  fact  was  executed  upon 
certain  trusts,  viz.,  to  satisfy  the  debts  of  the  grantor,  and  then  for  the  use 
and  benefit  of  his  family,  the  widow  and  heirs  of  the  grantor  are  not  only 
proper  but  necessary  parties. 

2.  All  persons  whose  interests  are  involved  in  the  issue,  and  who  must 
necessarily  be  affected  by  the  deceee,  are  necessary  parties. 


Shipman,  for  complainants. 
Vliet,  for  defendants. 

THE  CHANCELLOR.  This  bill  is  filed  by  the  widow  and 
heirs-at-law  of  Martin  Pence,  deceased,  to  obtain  relief 
against  a  conveyance  executed  by  Pence  in  his  lifetime  to 
the  defendant,  Jacob  Pence. 

The  grounds  of  demurrer  are — 

1.  That  the  widow  and  heirs  are    improperly  joined  as 
complainants. 

2.  That  the  bill  prays  an  account  of  rents  and  profits  in 
the  lifetime  of  Martin  Pence,  which  belong  to  the  adminis- 
trator, and  not  the  widow  and  heirs. 

3.  That,  the  bill  seeks  to  recover  the  proceeds  of  a  note 
belonging  to  Martin  Pence,  which  was  collected  and  misap- 
propriated by  the  defendant. 

4.  That  the  bill  prays  an  account  not  only  of  the  rents  and 
profits  of  the  lands  and  of  the  proceeds  of  the  note,  but  for 
all  other  moneys  collected  by  the  defendant  belonging  to 
Martin  Pence. 

The  demurrer  appears  to  have  been  filed  under  a  mis- 
apprehension of  the  real  purpose  of  the  bill.  If  the  object 
of  the  bill  be  to  set  aside  the  deed  as  fraudulent  and  void, 
on  the  ground  of  the  mental  imbecility  of  the  husband, 
and  of  actual  fraud  practised  upon  the  wife  to  induce  her 
to  assign  her  dower;  if  the  relief  sought  by  the  widow 


258  CASES  IN  CHANCERY. 

Pence  v.  Pence. 

and  heirs  and  the  grounds  of  that  relief  are  entirely  dis- 
tinct; if  the  widow  and  heirs  of  Martin  Pence  are  seek- 
ing an  account  of  the  personal  property  of  Martin  Pence 
with  a  view  to  its  recovery,  the  bill  is  obnoxious  to  all  the 
objections  raised  by  the  demurrer.  It  is  bad  for  multifari- 
ousness,  and  the  complainants,  as  the  widow  and  heirs  of 
Martin  Pence,  are  seeking  relief  to  which  his  administrators 
are  alone  entitled. 

But  the  real  purpose  of  the  bill  is  not  to  avoid  the  deed, 
but  to  establish  trusts  under  it,  and  to  have  those  trusts 
executed.  The  charge  is,  that  the  deed,  though  absolute 
upon  its  face,  was  in  fact  executed  upon  certain  trusts, 
viz.,  to  satisfy  the  debts  of  the  grantor,  and  then  for  the 
use  and  benefit  of  his  family ;  that  the  debts  have  been 
satisfied  by  the  rents  and  profits  of  the  real  estate  and  by 
certain  moneys  of  the  grantor  received  by  the  trustee,  and 
that  the  cestuis  que  trust  are  consequently  entitled,  under 
the  terras  of  the  agreement,  to  have  an  account  taken, 
and  the  trust  executed.  To  the  bill,  in  this  aspect,  the 
widow  and  heirs  of  the  grantor  are  not  only  proper  but 
necessary  parties.  All  persons  whose  interests  are 
involved  in  the  issue,  and  who  must  necessarily  be  affected 
by  the  decree,  are  necessary  parties.  1  Daniell's  Pr.  240, 
and  note  2. 

And  for  the  purpose  of  having  the  alleged  trusts  exe- 
cuted, it  is  necessary  that  an  account  should  be  taken,  not 
only  of  the  rents  and  profits  of  the  real  estate,  but  also  of 
all  the  moneys  of  Martin  Pence  received  by  the  defend- 
ant, either  in  the  lifetime  of  Martin  Pence  or  since  his 
death,  and  which  in  equity  ought  to  be  appropriated  for 
the  payment  of  his  debts;  not  that  the  personal  property 
thus  received  may  be  recovered  by  the  complainants,  but 
that  it  may  be  ascertained  whether  it  has  been  applied  toward 
the  payment  of  debts,  and  whether  the  trust  lias  been  exe- 
cuted. 

The  bill  is  not  carefully  drawn,  and  there  are  expres- 
sions, both  in  the  statements  and  in  the  prayer  of  the  bill, 


FEBRUARY  TERM,  1861.  259 

Wright  v.  McKean. 

which  sec  in  to  militate  against  the  foregoing  view  of  its 
scope  and  design  ;  but  they  do  not  appear  to  me  materially 
to  affect  its  character,  and  they  certainly  do  not  operate  to 
render  the  bill  available  for  any  other  purpose  than  that 
stated. 

The  complainant  will  not  be  permitted,  under  the  present 
frame  of  his  bill,  either  to  have  the  deed  set  aside  as  fraudu- 
lent, or  to  recover  personal  assets  of  Martin  Pence  which 
came  to  the  hands  of  the  defendant  in  his  lifetime.  If  such 
is  the  design  of  the  complainant,  the  bill  should  be  amended. 

The  demurrer  is  overruled. 


WRIGHT  vs.  McKEAN  and  others. 

In  a  foreclosure  snit,  when  an  answer  has  been  filed  by  a  junior  encum- 
brancer, which  neither  denies  the  amount  claimed  nor  the  order  of  pri- 
ority, an  order  of  reference  cannot  be  made,  unless  by  consent,  without 
setting  the  cause  down  for  hearing. 


C.  S.  Green,  for  complainant. 
Btasley,  contra. 

THE  CHANCELLOR.  On  a  bill  to  foreclose,  an  answer 
was  filed  by  a  junior  encumbrancer,  or  a  party  claiming 
some  equity  subsequent  to  that  of  the  complainant.  The 
order  of  priority  is  not  disputed,  nor  does  the  amount 
claimed  as  due  appear  to  be  denied.  A  decree  pro  con- 
Jesso  was  taken  against  the  other  defendants,  and  an  order 
of  reft-rence  made  to  a  master,  without  setting  down  the 

7  O 

cause  for  hearing,  and  without  the  consent  of  the  defend- 
ant, who  filed  an  answer.  A  motion  is  now  made  to  sub- 
stitute a  new  master  for  the  one  named  in  the  original 
order.  It  is  objected  that  the  original  order  was  irregu- 
lar, and  that,  consequently,  no  substitution  should  be  made. 


260  CASES  IN  CHANCERY. 

Wright  v.  McKean. 

The  only  point  upon  which  an  opinion  is  asked  is 
whether,  upon  a  foreclosure  bill,  when  an  answer  is  filed 
by  a  junior  encumbrancer,  which  neither  denies  the 
amount  claimed  to  be  due  nor  disputes  the  order  of  pri- 
ority, an  order  of  reference  may  be  made  without  setting 
the  cause  down  for  hearing  and  without  consent.  The 
statute  requires  that  when  an  answer  is  filed  the  com- 
plainant shall  either  file  exceptions  or  a  replication,  or  set 
down  the  cause  for  hearing  upon  bill  and  answer.  Nix.  Dig. 
91,  §  28. 

When  no  answer  is  filed,  and  a  decree  pro  confesso  is  taken 
against  the  defendant  or  against  all  the  defendants,  and  the 
whole  amount  intended  to  be  secured  by  the  mortgage  is 
due,  no  order  of  reference  is  necessary  unless  specially 
ordered,  nor  is  it  necessary  to  set  the  cause  down  for  final 
hearing.  Ride  14,  §  3. 

Rule  14,  §  4  and  §  5,  both  relate  to  setting  down  the 
cause  for  hearing  upon  the  coming  in  of  the  master's  re- 
port after  the  order  of  reference  has  been  made.  Neither 
of  them  relates  to  the  making  of  the  order  of  reference 
nor  in  any  wise  affects  the  question  now  under  considera- 
tion. 

Ride  8,  §  3,  regulating  the  proceedings  in  case  of  an  infant 
defendant,  where  no  answer,  plea,  or  demurrer  is  filed  on  his 
behalf,  authorizes  a  reference  to  a  master  only  where  a  decree 
pro  confesso  has  been  taken  against  all  the  other  defendants, 
or  upon  filing  the  consent,  in  writing,  of  such  defendants  to 
the  reference. 

There  is  nothing  in  the  rules  which  does  or  can  at  all 
interfere  with  the  plain  requirements  of  the  statute.  Where 
an  answer  is  filed  by  any  defendant,  there  can  be  no  reference 
to  a  master  without  setting  down  the  cause  for  hearing,  or 
without  the  consent  of  the  defendant  by  whom  the  answer  is 
filed. 

It  is  asked,  why  set  the  cause  down  when  the  amount 
claimed  as  due  upon  the  complainant's  mortgage  is  not 
denied,  and  there  is  no  dispute  as  to  the  order  of  priority. 
The  answer  is  twofold. 


FEBRUARY  TERM,  1861.  261 

Snover  v.  Snover. 

1.  Because  the  statute  requires  it. 

2.  Because,  although  there  may  be  no  dispute  as  between 
the  defendant   who  answers  and   the  complainant,  and   no 
question  as  to  priority,  there  may  be  important  questions  in- 
volved touching  the  rights  of  co-defendants,  which  the  court, 
in  its  discretion,  may  and   often  ought  to  dispose  of  before 
the  order  of  reference  is  made. 

The  motion  to  substitute  a  master  must  be  denied  ;  the 
order  of  reference  heretofore  made  must  be  set  aside,  and  the 
cause  set  down  for  hearing,  as  required  by  the  statute. 

CITED  in  Young  v.  Young,  2  C.  E.  Or.  164. 


SAMUEL  SNOVER  vs.  ELIZA  SNOVER. 

1.  Alimony. 

2.  Application  lo  increase  or  diminish  the  allowance  may  be  made  by 
petition. 

Kennedy  and  Williamson,  for  petitioner. 
Sherrerd,  contra. 

THE  CHANCELLOR.  A  divorce  from  bed  and  board  be- 
tween the  parties  in  this  cause  was  granted,  on  the  applica- 
tion of  the  wife,  at  October  Term,  1854.  The  decree  allows 
alimony  to  the  wife,  and  directs  that  the  youngest  child  should 
remain  with  the  mother,  and  that  the  father  should  pay  sev- 
enty-five cents  a  week  to  the  mother  for  the  maintenance,  edu- 
cation and  clothing  of  the  said  child.  Leave  was  given  to 
either  party  to  make  application,  from  time  to  time,  for  a 
change  in  the  allowance.  The  allowance  made  to  the  wife 
for  alimony,  and  for  the  support  of  the  child,  was  declared 
to  be  a  lien  upon  the  real  estate  of  the  husband  in  this  state, 
and  he  was  also  required  to  give  further  reasonable  security 
for  the  punctual  payment  of  the  allowance. 

The   husband    has  now  filed  a  bill   to  be  relieved  from 


262  CASES  IN  CHANCERY. 

Snover  v.  Snover. 

the  further  payment  of  the  allowance  for  the  support,  edu- 
cation and  clothing  of  the  child.  The  mother  has  also  peti- 
tioned for  an  increase  of  the  allowance.  This  case  was  fully 
considered  by  the  Chancellor,  and  upon  a  careful  considera- 
tion of  the  evidence  adduced  upon  the  present  application,  I 
see  no  ground  to  change  the  allowance  made  at  the  time  of 
the  decree.  There  has  been  no  such  change  in  the  condition 
of  the  child,  or  in  the  circumstances  of  the  parents,  as  to 
warrant  either  a  change  in  the  amount  or  a  discontinuance 
of  the  allowance. 

The  principal  grounds  of  the  application  on  the  part  of 
the  father,  are  the  incapacity  of  the  mother  to  act  as  the 
guardian  of  the  daughter  ;  that  the  child  was  taken  from 
the  duties  of  house-keeping  and  put  to  labor  in  the  fields, 
at  work  suitable  only  for  the  male  sex  ;  that  her  educa- 
tion has  been  neglected,  and  that  she  has  actually  earned 
her  own  living.  These  charges  are  fully  met  and  over- 
come by  the  evidence  in  the  case.  I  am  satisfied  that 
there  is  no  reason  for  withholding  the  allowance  on  either 
of  these  grounds.  The  omission  to  send  the  child  to 
school  for  a  portion  of  the  time  has  been  satisfactorily 
explained.  Her  employment  and  education  has  been 
adapted  to  her  situation  and  condition  of  life.  There  is 
nothing  in  the  evidence  showing  that  she  had  been  im- 
properly employed  in  services  not  suitable  to  her  age  and 
sex. 

Another  ground,  and  that  most  seriously  urged  upon 
the  argument,  was  that  the  child  was  now  of  an  age  to 
choose  her  own  guardian,  and  that  she  should  be  permit- 
ted to  live  with  her  father  or  her  mother  as  she  might 
prefer ;  that  so  long  as  the  allowance  to  the  mother  is 
continued,  the  child  is  virtually  deprived  of  the  freedom 
of  choice.  If  there  was  any  evidence  that  the  child  de- 
sired to  live  with  the  father,  and  that  lie  was  a  proper 
person  to  have  the  care  and  charge  of  her,  there  might  be 
weight  in  this  suggestion.  But  so  long  as  she  is  satisfied 
to  remain  with  her  mother,  it  is  not  perceived  that  the 


FEBRUARY  TERM,  1861.  263 


Cook  v.  Cook. 


allowance  for  her  support  should  be  discontinued,  or  that  its 
continuance  in  any  wise  interferes  with  her  freedom  of  choice 
or  with  the  just  rights  of  the  father.  There-is,  moreover,  this 
serious  objection  to  relieving  the  father  on  this  ground  from 
the  allowance.  He  is  not  a  resident  of  this  state.  If  he 
should  be  relieved  from  the  payment  of  the  allowance,  and 
the  securities  now  held  by  the  court  for  its  payment  should 
be  discharged,  there  would  be  no  mode  of  compelling  the 
father  to  support  the  child  incase  it  should  become  necessary 
to  make  such  order  in  future.  In  case  of  sickness  or  disabil- 
ity she  would  be  thrown  entirely  upon  the  mother  for  her 
support. 

On  the  other  hand,  I  see  no  reason  whatever  for  an  in- 
crease of  the  allowance.  The  evidence  does  not  show  such  an 
increase  in  the  cost  of  maintaining  and  educating  the  daugh- 
ter as  to  justify  an  increase  of  the  allowance. 

Both  motions  are  denied,  without  costs  on  either  side.  The 
injunction  heretofore  granted  to  restrain  the  collection  of  the 
allowance  must  be  dissolved. 

From  the  evidence  now  before  the  court,  I  incline  to  the 
opinion  that  if  the  daughter  continues  in  health  the  allowance 
for  her  support  shou!4  tiease  when  she  attains  the  age  of 
eighteen.  I  will  hear  an  application  on  this  ground  from 
the  father  at  the  proper  time.  No  bill  is  necessary  for  that 
purpose.  The  application  may  be  made  by  petition. 


ANN  COOK  vs.  WILSON  COOK. 

1.  When  a  cause  in  a  divorce  suit  is  referred  to  a  master,  it  is  irregular 
to  examine  a  witness  before  another  master. 

2.  A  divorce  will  not  be  decreed  upon  proof  that  the  husband  went 
away  and  lived  apart  from  his  wife.     A  mere  separation  cannot  be  consid- 
ered a  desertion  within  the  meaning  of  the  statute. 


264  CASES  IN  CHANCERY. 

Massaker  v.  Massaker. 

THE  CHANCELLOR.  1.  One  of  the  material  witnesses  was 
not  examined  before  the  master  to  whom  the  cause  was  refer- 
red, but  before  another  master.  This  was  illegal,  and  the 
evidence  so  taken  is  incompetent  upon  the  hearing.  Aside 
from  the  evidence  of  this  witness,  there  is  no  legal  proof  of 
the  marriage. 

2.  There  is  no  proof  whatever  of  a  "  willful,  continued  and 
obstinate  desertion,"  within  the  meaning  of  the  statute.  A 
divorce  will  not  be  decreed  simply  upon  evidence  that  the 
husband  went  away  and  lived  apart  from  his  wife.  Where 
there  is  no  evidence  except  of  a  mere  separation,  it  cannot  be 
considered  an  obstinate  desertion  within  the  meaning  of  the 
statute.  Opinion  of  Chancellor  Williamson  in  Drake  v. 
Drake,  cited  in  Haht.  Dig.  385. 

The  principle  is  well  settled,  and  is  constantly  and  uni- 
formly acted  upon. 

The  evidence  in  this  case  merely  shows  that  the  husband, 
some  years  since,  left  his  family  in  this  state  and  went  to  the 
State  of  Indiana.  For  what  purpose  or  under  what  circum- 
stances he  left  the  state,  or  why  he  has  not  returned,  is  not 
attempted  to  be  shown.  The  evidence  is  too  loose  and  un- 
satisfactory to  warrant  a  decree  in  favor  of  the  complainant. 

The  bill  must  be  dismissed. 

CITED  in  Moores  v.  Moores,  1  Q.  E.  Or.  280. 


MASSAKER  vs.  MASSAKER. 

1.  The  personal  estate  alone  is  liable  for  the  payment  of  legacies,  unless 
the  land  is  by  the  will  made  chargeable  either  expressly  or  by  clear  im- 
plication. 

2.  Parol  evidence  of  the  declarations  of  the  testator  is  not  admissible  to 
show  an  intention  to  charge  legacies  upon  the  land. 

3.  That  the  personal  estate  is  not  sufficient  to  pay  the  legacies  will  not 
of  itself  make  the  land  chargeable. 


FEBRUARY  TERM,  1861.  265 

Masaaker  v.  Maraaker. 
Woodruff",  for  complainant. 

)  for  defendant. 


THE  CHANCELLOR.  The  only  question  raised  by  the  de- 
fendant's answer  is,  whether  certain  legacies  under  the  will  of 
John  Massaker,  Jr.,  are  a  charge  upon  the  real  estate  of 
which  he  died  seieed,  and  which  is  not  disposed  of  by  his 
will. 

The  personal  estate  alone  is  liable  for  the  payment  of 
legacies  unless  the  land  is  by  the  will  made  chargeable, 
either  expressly  or  by  clear  implication.  Lupton  v.  Lupton, 
2  Johns.  Ch,  R.  614  ;  White  v.  Ex>rs  of  Olden,  3  Green's 
Ch.  R.  343. 

There  is  nothing  in  the  will  of  the  testator  that  can  by 
possibility  create  a  charge  upon  the  land.  It  is  not  so  al- 
leged or  suggested  in  the  answer.  But  it  is  sought  to  estab- 
lish an  intention  on  the  part  of  the  testator  that  the  legacies 
should  be  charged  on  the  real  estate  whereof  partition  is 
sought  to  be  made. 

1.  From  the  parol  declarations  of  the  testator. 

2.  From  the  extent  of  his  legacies  and  the  disposition  of 
liis  property,  taken  in  connection  with  the  character  and  valuo 
of  his  property. 

1.  Parol   declarations   of  the  testator  are   not   competent 
to  control  the  construction  of  his  will,  even  when  they  are 
clearly    proved    by  competent   evidence.     There    is   in    this 
case    no    competent     proof    that    such    declarations     were 
made.     No    witness    has    been    examined  who    professes    to 
have  heard  such  declarations  from  the  lips  of  the  testator 
himself. 

2.  The   bulk   of   the   testator's   property   consisted   of  a 
house  and  lot,  which  were  devised  to  one  of  his  sons,  and 
a   uote   i'or   eight   hundred   dollars,  which  was   specifically 
bequeathed.      The    balance   of  his    personal    property    was 
insufficient  to  pay  his  debts  and  funeral  expenses.     Besides 
the    specific   bequest    already   mentioned,   the   testator    be- 


266  CASES  IN  CHANCERY. 

Massaker  v.  Massaker. 

queathed  several  pecuniary  legacies,  amounting  to  $550.  At 
the  date  of  his  will,  which  was  a  few  days  before  his  death, 
the  testator  had  no  estate,  real  or  personal,  for  the  payment 
of  the  legacies,  except  certain  lots,  which  are  not  devised  or 
mentioned  in  the  will,  and  which  it  is  now  insisted  the  testa- 
tor intended  should  be  sold  to  carry  into  effect  the  purposes 
of  his  will.  There  is  no  power  given  to  his  executors  to  sell 
the  real  estate — no  direction  that  it  should  be  sold — and  no 
intimation  of  the  testator's  will  in  relation  to  the  subject. 

Where,  from  the  language  of  a  will,  the  intention  of  the 
testator  is  doubtful,  the  circumstances  by  which  he  was  sur- 
rounded, the  condition  of  his  family,  and  the  nature  of  his 
estate  have  been  sometimes  resorted  to  to  ascertain  the  true 
construction  of  the  will.  In  Booth  v.  Elundell,  1  Mer.  216, 
it  was  held  that  the  respective  value  of  the  real  and  personal 
estate,  which  is  the  only  material  circumstance  relied  on  in 
this  case,  could  not  be  called  in  to  assist  in  explaining  the 
will;  and  although  upon  this  point  there  is  much  conflict  in 
the  authorities,  the  evidence  having  sometimes  been  held  ad- 
missible, such  circumstances  can  never  in  themselves  supply 
an  omission  in  the  draft  of  a  will  or  create  a  charge  which 
is  not  to  be  found  in  the  will  itself.  "Whatever  probabilities 
they  may  suggest  as  to  the  intention  of  the  testator,  they  can- 
not affect  the  plain  language  of  the  will,  nor  establish  any 
right  under  it. 

The  debts  alone,  not  the  legacies,  are  a  charge  upon  the 
real  estate. 


FEBRUARY  TERM,  1861.  267 


Blair  v.  Porter. 


BLAIR  and  HUNT  vs.  PORTER  and  others. 

1.  A  bill  of  interpleader  will  not  be  sustained  unless  there  is  a  well- 
founded  apprehension  of  danger  from  conflicting  claims  to  the  fund  in 
dispute. 

2.  Under  the  circumstances  of  this  case,  the  hill  was  retained,  but  no 
costs  allowed  out  of  the  fund. 


Shipman  and  Depue,  for  complainants. 
Annin,  for  defendants. 

THE  CHANCELLOR.  In  March,  1856,  Blair  and  Hunt, 
the  complainants,  were  indebted  to  William  Burger,  of  the 
city  of  New  York,  in  the  sum  of  $221.48,  the  debt  maturing 
on  the  13th  of  August  of  that  year. 

On  the  9th  of  April,  1856,  the  debt  was  attached  in  the 
hands  of  Blair  and  Hunt,  by  virtue  of  a  writ  of  attachment 
issued  out  of  the  Supreme  Court  of  this  state,  at  the  suit  of 
Charles  S.  Brown,  against  Burger,  as  a  non-resident  debtor. 
On  the  16th  of  March,  1857,  judgment  final  was  rendered 
in  the  attachment  suit,  in  favor  of  Brown  against  Burger, 
for  §1564.61  of  damages,  besides  costs  of  suit,  which  judg- 
ment remains  in  full  force,  unsatisfied  of  record.  On  the 
12th  of  April,  1856,  three  days  after  the  service  of  the 
attachment,  Burger  made  a  general  assignment  of  all  his 
property,  to  L.  D.  Frederick?,  for  the  benefit  of  his  credit- 
ors, and  on  the  26th  of  April,  the  assignee  claimed  the  debt 
due  from  Blair  and  Hunt,  by  virtue  of  the  assignment,  and 
demanded  payment  thereof  on  its  maturity. 

On  the  31st  of  March,  1856,  prior  to  the  service  or  issuing 
of  the  writ  of  attachment  at  the  suit  of  Brown,  Burger,  for 
a  valuable  consideration,  assigned  all  his  right  and  interest  in 
the  account  against  Blair  and  Hunt,  to  James  L.  Porter,  by 
virtue  of  which  assignment,  the  equitable  interest  in  the  debt 
passed  to  the  assignee. 

There  were  thus  three  distinct  claimants  for  the  debt  due 


268  CASES  IN  CHANCERY. 

Blair  y.  Porter. 

from  Blair  and  Hunt  to  Burger,  viz.,  Brown,  the  attaching 
creditor;  Fredericks,  the  general  assignee,  and  Porter,  the 
special  assignee,  all  of  whom  presented  their  claims  to  the 
debtors  before  the  debt  became  due. 

On  the  24th  of  September,  1856,  Fredericks,  the  general 
assignee  of  Burger,  wrote  to  Blair  and  Hunt,  on  behalf  of 
Porter,  the  special  assignee,  as  his  attorney,  claiming  the 
debt,  with  interest,  as  due  to  Porter,  and  asking  whether  it 
would  be  paid  without  suit.  This  letter,  though  it  contains 
no  disclaimer  of  his  right  to  the  debt,  under  the  general 
assignment  made  to  him  by  Burger,  appears  to  have  been 
regarded  as  a  virtual  abandonment  of  that  claim.  It  was 
certainly  groundless,  as  the  assignment  was  made  subsequent 
to  the  levy  of  the  writ  of  attachment.  Fredericks  was, 
therefore,  not  made  a  party  to  the  suit.  The  bill  of  inter- 
pleader was  filed  against  Burger,  the  original  debtor;  Brown, 
the  attaching  creditor,  and  Porter,  the  special  assignee. 
Burger  has  answered,  and  disclaimed  all  interest  in  the  debt. 
Porter,  by  his  answer,  claims  the  debt  by  virtue  of  the 
assignment  from  Burger,  and  also  by  virtue  of  a  compromise 
between  himself  and  Brown,  the  attaching  creditor,  by  which 
it  was  agreed  that  the  attorney  of  the  plaintiff  in  attachment 
should  act  as  the  attorney  of  both  parties,  collect  the  claim, 
and  pay  the  claimants  their  respective  portions,  according  to 
the  terms  of  the  compromise.  The  existence  of  this  agree- 
ment is  fully  proved.  Brown,  the  attaching  creditor,  has  not 
answered.  As  to  him,  the  bill  has  been,  or  may  be  taken  as 
confessed.  So  far  as  the  rights  of  the  parties  before  this 
court  are  concerned,  this  is  an  admission,  on  his  part,  that  his 
claim  was  unfounded,  and  that  he  has  no  right  to  the  fund. 
Badeau  v.  Rogers,  2  Paige  209;  3  Darnell  1763. 

Upon  this  state  of  facts,  there  is  no  dispute  whatever,  be- 
tween the  defendants,  as  to  the  right  to  the  fund  in  question. 
Porter  is  clearly  entitled  to  it. 

The  only  question  in  the  cause  is,  was  the  bill  properly 
filed? 


FEBRUARY  TERM,  1861.  269 

Blair  v.  Porter. 

It  is  evident  that,  prior  to  the  compromise  between 
Brown  and  Porter,  there  were  conflicting  claims  to  the 
debt,  and  the  correspondence  of  the  debtors  evinces  an 
entire  willingness  to  pay  the  amount  due  to  the  claimant 
entitled  to  receive  it.  Subsequent  to  the  compromise  be- 
tween the  claimants,  on  application  for  payment,  the  ex- 
istence of  the  debt  was  denied,  and  thereupon  a  suit  was 
commenced,  in  the  name  of  Burger,  the  original  creditor, 
to  the  use  of  Porter,  for  its  recove'ry.  To  this  suit  Blair 
and  Hunt  appeared,  and  negotiations  were  entered  into 
between  the  respective  attorneys  for  a  settlement.  The 
negotiation  was  broken  off  in  consequence  of  a  misun- 
derstanding or  disagreement  between  the  attorneys,  and 
thereupon  this  bill  was  filed  for  an  injunction  to  restrain 
the  suit  at  law,  and  for  the  parties  to  interplead.  It  is 
apparent,  from  the  evidence,  that  there  was  no  question  in 
regard  to  the  party  entitled  to  the  money.  The  real  diffi- 
culty was,  whether  Blair  and  Hunt  were  liable  for  interest 
upon  the  debt,  and  for  costs  of  suit.  It  was,  in  fact,  agreed 
to  submit  these  questions  to  the  decision  of  the  Supreme 
Court,  and  the  negotiation  was  broken  off  upon  a  dis- 
agreement in  relation  to  the  state  of  the  case.  An  in- 
demnity was  indeed  asked  for,  but  receipts  were  offered, 
and  the  evidence  warrants  the  belief  that  the  fact  of  the 
compromise,  and  the  right  of  the  attorney  to  give  receipts 
which  would  operate  as  a  perfect  indemnity,  were  fully 
understood.  Under  these  circumstances,  the  filing  of  the 
bill  was  unnecessary.  No  injunction  was  needed  to  re- 
strain the  suit  at  law.  The  existence  of  the  attachment 
was  a  perfect  defence  at  law  to  that  action.  1  Chilly's  PI. 
613,  521,  524.  The  defendants  were  exposed  to  no  hazard 
of  being  subjected  to  damages,  interest,  or  costs.  Nor 
would  it  seem  that  there  could  have  been  any  well-founded 
apprehension  of  danger  from  conflicting  claims  to  the 
fund.  The  attorney  of  the  plaintiff  was  in  fact  the  attor- 
ney of  all  the  parties,  and  if  his  receipt  was  not  satisfac- 
tory, it  is  obvious  that  proper  indemnity  would  have  been 

VOL.  II.  R 


270  CASES  IN  CHANCERY. 

Blair  v.  Porter. 

given.  Under  these  circumstances,  aside  from  all  technical 
objections  (which  are  waived  by  the  nature  of  the  pleadings), 
the  bill,  perhaps,  in  strictness,  should  be  dismissed. 

Yet  it  is  obvious  that  such  disposition  of  the  case  would 
be  prejudicial  to  the  interests  of  both  parties,  and  would 
defeat  the  ends  of  justice.  There  is,  in  reality,  no  ground  of 
dispute  between  the  parties.  The  existence  of  the  debt  ia 
admitted.  The  principal  due  is  voluntarily  brought  into 
court  by  the  complainants.  No  interest  can  be  recovered 
upon  it.  The  fund  has  been  locked  up  in  the  hands  of  the 
debtors,  from  the  time  it  became  due,  by  writ  of  foreign 
attachment.  A  garnishee  is  not  liable  for  interest  on  the 
amount  attached  while  he  is  bona  fide  restrained  from  pay- 
ment by  the  legal  operation  of  a  foreign  attachment.  Fitz- 
gerald v.  Caldwell,  2  Dall.  215;  Prescott  v.  Parker,  4  Mass. 
170;  Sellick  v.  French,  1  Am.  Lead.  Cases  527,  note. 

Upon  the  case  made  before  the  court,  Porter  is  unquestion- 
ably entitled  to  the  money.  The  fund  is  in  court,  and  under 
its  control.  All  the  necessary  parties  are  before  the  court. 
Their  rights  may  be  definitely  settled  and  fully  protected  by 
a  final  decree. 

The  effect  of  dismissing  the  bill  would  be  to  leave  the 
parties,  after  five  years  of  fruitless  controversy,  with  nothing 
settled  but  liability  for  costs,  to  commence  litigation  anew. 

The  bill  will  be  retained,  but  without  the  usual  allowance 
to  the  complainant  of  costs  out  of  the  funds — that,  under  the 
circumstances,  would  be  inequitable.  The  fund  will  be 
decreed  to  be  paid  to  Porter.  Under  the  circumstances,  there 
is  no  propriety  in  the  parties  actually  interpleading,  and  no 
necessity  for  a  reference. 

CITED  IN  First  Nat.  Bk.t  .fl/orrwtown,  v.  Binninger,  11  C.  E.  Or.  350. 


FEBRUARY  TERM,  1861.  271 


Brown  v.  Fuller. 


CHARLES  BROWN  and  others  vs.  WALTER  FULLER  and 

others. 

1.  A  formal  traverse  of  material  matters  contained  in  the  bill  is  not 
«ufficient  to  dissolve  an  injunction.     The  answer  must  be  full  and  satis- 
factory. 

2.  A  creditor,  having  exhausted  his  remedy  by  execution  at  law,  has  a 
right  to  come  into  a  court  of  equity  to  set  aside  a  conveyance  alleged  to 
Lave  been  fraudulently  made  by  his  debtor. 


Williams,  for  complainants. 
Frelinyhuysen,  for  defendants. 

THE  CHANCELLOR.  The  defendants  move  to  dissolve  the 
injunction  upon  these  grounds,  viz.: 

1.  For  want  of  equity  in  the  bill.  It  is  urged  that  the 
bill  is  multifarious,  and  that  if  the  facts  charged  therein  are 
true  the  complainant  has  a  full  and  adequate  remedy  at  law. 
The  objection  is  not  well  taken.  The  complainants  have  a 
judgment  at  law  against  Fuller,  upon  which  an  execution  has 
been  issued  and  returned  unsatisfied,  and  he  has  no  other 
visible  pro|>erty  out  of  which  satisfaction  of  the  judgment 
can  be  obtained.  The  remedies  at  law  have  been  exhausted. 
An  alias  writ  of  fieri  facias  has  been  issued  and  levied  upon 
real  estate  in  possession  of  the  defendant  Fuller,  and  which 
was  recently  owned  by  him,  but  the  legal  title  to  which  was 
transferred  from  Fuller  to  his  son  a  short  time  tafore  the 
recovery  of  the  complainants'  judgment.  The  property, 
moreover,  is  largely  encumbered  by  mortgages  and  by  a 
judgment  given  prior  to  the  alienation  of  the  title  by  Fuller. 

Under  these  circumstances,  the  execution  creditor  is 
entitled  to  come  into  equity  for  relief.  The  bill  is  sus- 
tainable under  the  ordinary  jurisdiction  of  a  court  of 
equity  .to  set  aside  fraudulent  conveyances  and  other  obstruc- 
tions to  an  execution  at  law,  and  to  make  the  holders 


272  CASES  IN  CHANCERY. 

Brown  r.  Fuller. 

of  all  such  conveyances  and  encumbrances  parties  to  the 
suit.  Cook  v.  Johnson,  I  Beasley  51 ;  Boyd  v.  floyt,  5  Paige 
65;  Reode  v.  Livingston,  3  Johns.  C/i,  J3.  481  ;  J&c&  v.  .Bur- 
deft,  1  Paige  305;  6  Paige  526;  TAe  Ghatauque  County  Bank* 
v.  JFAzte,  2  &/.  236 ;  Same  v.  J2/s%,  19  JV.  F.  .%>.  369 ; 
J?az7ey  v.  Burton,  8  Wend.  339;  McElwuin  v.  Yardley,  9 
TFend.  549. 

2.  Because  the  equity  of  the  bill  is  fully  denied  by  the 
answers. 

As  to  a  part  of  the  defendants,  this  objection  m,ust  prevail. 
The  answer  of  the  bank  is  a  full  and  explicit  denial  of  the 
equity  of  the  bill,  so  far  as  regards  the  validity  of  their 
claim,  and  the  injunction,  as  against  them,  must  be  dissolved. 
But  the  answer  of  the  other  defendants  is  by  no  means  so 
satisfactory.  The  defendants  have,  in  several  material  par- 
ticulars, satisfied  themselves  by  a  more  formal  traverse  of  the 
charges  of  the  bill  in  the  precise  phraseology  in  which  the 
charges  are  made.  This  is  not  enough. 

lu  regard  to  the  mortgage  of  Shotwell,  the  defendants, 
Fuller  and  Shot  well,  answer  that  the  mortgage  was  not 
given  for  the  purpose  of  fraud,  as  is  alleged  by  said  com- 
plainant, but  was  given  to  secure  certain  indebtedness 
from  Fuller  to  Shotwell,  particularly  specified  in  the 
answer.  The  mortgage  was  given  for  $10,888.78,  which 
is  alleged  to  bean  error,  the.  real  indebtedness  being  but 
$10.770.87.  With  the  exception  of  a  small  balance  on 
account,  this  indebtedness  is  alleged  to  consist  of  eleven 
promissory  notes,  the  aggregate  amount  of  which  is 
$4287.58,  and  the  interest  thereon  $6000.  These  notes 
all  matured  from  February  to  June,  1842,  over  seventeen 
years  before  the  giving  of  the  mortgage.  Not  one  dollar 
of  interest  appears  to  have  been  paid  upon  them.  This 
transaction  is  in  itself  suspicious  and  calculated  to  awaken 
inquiry  as  to  the  bona  fides  of  the  indebtedness,  as  well  as 
to  its  actual  existence.  What  was  the  cause  of  this 
indebtedness?  To  say  that  the  consideration  of  the 
mortgage  was  the  principal  and  interest  due  on  eleven 


FEBRUARY  TERM,  1861.  273 

Brown  v.  Fuller. 

promissory  notes,  is  no  answer  to  the  inquiry.  Latham  v. 
Lawrence,  6  Halst.  325.  The  question  remains,  what  was 
the  consideration  of  the  notes,  and  why  were  they  suf- 
fered to  remain  outstanding  for  seventeen  years  without 
the  payment  of  either  principal  or  interest,  until  the  com- 
plainant has  commenced  his  suit  and  about  to  recover 
his  judgment?  Fraud  and  want  of  consideration  were 
directly  charged  by  the  bill  in  relation  to -this  mortgage, 
and  it  certainly  behooved  the  defendant  to  give  a  more 
satisfactory  explanation  of  the  real  character  of  the  trans- 
action. 

The  answer  in  relation  to  the  judgment  of  Thorp  is 
equally  unsatisfactory.  The  defendants,  Fuller  and  Thorp, 
"deny  that  only  a  small  part  of  that  sum  was  actually  due 
to  said  Thorp,  and  also  deny  that  said  confession  of  judg- 
ment was  made  for  the  purpose  of  defeating  said  com- 
plainants in  the  collection  of  their  debt  by  placing  an 
additional  encumbrance  on  the  property  of  said  Walter 
Fuller."  But  Thorp  does  not,  by  his  answer,  allege  that 
the  whole  amount  of  the  judgment  was  actually  and 
honestly  due,  nor  does  he  state  the  consideration  of  the 
judgment  or  the  ground  of  the  indebtedness.  Upon  these 
all-important  points  Thorp  is  entirely  silent,  and  leaves 
the  answer  to  rest  entirely  upon  the  conscience  of  Fuller 
alone. 

The  question  at  this  stage  of  the  inquiry,  it  must  be 
borne  in  mind,  is  not  whether  these  claims  may  or  may 
not  prove,  upon  a  final  investigation,  to  be  well  founded, 
but  whether  the  answer  is  of  such  a  character  as  to  justify  a 
dissolution  of  the  injunction.  I  am  clearly  of  opinion  that 
it  is  not. 

3.  The  third  ground  upon  which  the  defendants  ask  a 
dissolution  of  the  injunction  is  because  the  complainants 
have  not  used  due  diligence  in  the  prosecution  of  the 
suit.  The  bill  was  filed  and  the  injunction  issued  on  the 
23d  of  April,  1860.  The  answers  were  filed  in  July  fol- 
lowing. No  further  step  has  been  taken  in  the  case  by 


274  CASES  IN  CHANCERY. 

Lavalette  v.  Thompson. 

the  complainants.  The  rule  is  well  settled  that  a  party  who 
relies  upon  the  protection  of  the  court  by  injunction  must  use 
due  diligence  in  the  prosecution  of  his  suit.  If  he  fail  to  sue 
out  a  subpoena  or  to  use  due  diligence  in  expediting  his  cause, 
the  injunction  will  be  dissolved.  Corey  v.  Voorhies,  1  Green'a 
Ch.  R.  6 ;  West  v.  Smith,  1  Green's  Oh.  K  309 ;  Lee  v.  Car- 
gill,  2  Stockt.  331. 

Upon  the  hearing  it  was  suggested  that  the  delay  on  the 
part  of  the  complainants  was  in  a  measure  attributable  to 
some  agreement  or  attempts  at  arrangement  between  the  so- 
licitors of  the  respective  parties.  The  court  then  intimated 
that  a  dissolution  would  not  be  ordered  upon  that  ground,  if 
the  complainants  would  proceed  promptly  with  the  cause. 
No  further  step  having  been  taken,  the  injunction  must  be 
dissolved,  with  costs. 

CITED  in  Huffman  v.  Hummer,  2  C.  E.  Gr.  269 ;   Vreeland  v.  N.  J.  Stone 
Co.,  10  G.  E.  Or.  143. 


LAVALETTE  et  ux.  vs.  THOMPSON  and  others. 

1.  An  innocent  purchaser  is  not  liable  to  a  latent  equity  of  which  he  was 
ignorant. 

2.  A  mortgagee  is  a  purchaser  of  the  mortgaged  premises  within  the  in- 
tent of  the  statute  of  frauds. 

3.  A  and  B  jointly  executed  a  mortgage  to  secure  $5000  upon  land  of 
which  they  were  equally  seized  as  tenants  in  common.     A,  by  an  arrange- 
ment with  B,  received  only  $1000  of  the  mortgage  money.     B  afterwards 
executed  a  second  mortgage  to  another  party  on  his  moiety  of  said  lands 
and  on  another  lot  owned  by  him  in  severalty.     Both  mortgages  have  been 
duly  recorded.    Held,  that  as  against  such  second  mortgagee,  the  first 
mortgage  was  a  lien  equally  on  the  shares  of  A  and  B  in  the  premises. 


Carpenter,  for  complainants. 
Attorney- General,  for  defendants. 

THE  CHANCELLOR.     The  defence  of  usury,  raised  by  the 
answer   of  one   of  the  mortgagors,  and   to  which   a   large 


FEBRUARY  TERM,  1861.  275 

Lavalette  v.  Thompson. 

portion  of  the  evidence  is  directed,  is  not  insisted  on.  The 
only  remaining  question  raised  by  the  pleadings,  and  dis- 
cussed upon  the  argument,  relates  to  the  marshaling  of  the 
securities  upon  the  mortgaged  premises. 

The  complainants'  mortgage  bears  date  on  the  second  of 
August,  1850.  It  was  given  by  John  R.  Thompson  and 
Charles  M.  Thompson,  and  their  respective  wives,  to  the 
complainant,  to  secure  the  payment  of  a  bond  of  the  mort- 
gagors, of  even  date,  conditioned  for  the  payment  of  $6000 
in  three  years,  with  interest.  The  mortgaged  premises  con- 
sist of  four  lots,  numbers  1,  2  and  3,  being  the  joint  pro- 
perty of  both  mortgagors,  and  number  4,  being  the  several 
property  of  John  R.  Thompson  alone. 

On  the  9th  of  September,  1852,  John  R.  Thompson,  in 
order  to  secure  the  payment  of  his  bond  for  $1000,  exe- 
cuted to  Lewis  Chester  a  mortgage  upon  lot  number  4, 
.and  also  upon  his  undivided  moiety  of  lots  numbers  1,  2 
and  3.  This  mortgage  has  been  assigned  to  and  is  now 
held  by  John  Ashcroft.  Both  mortgages  are  duly  regis- 
tered. 

On  the  29th  of  December,  1857,  lots  numbers  1,  2  and  3, 
which  were  previously  held  by  John  and  Charles  Thompson 
as  tenants  in  common,  were  partitioned  between  them,  and 
have  since  been  held  in  several ty. 

Charles  M.  Thompson,  one  of  the  mortgagors  in  the 
complainants'  mortgage,  avers  in  his  answer,  that  although 
the  bond  and  mortgage  were  jointly  given  by  John  R. 
Thompson  and  himself  for  the  sum  of  $6000,  yet  that,  by 
an  arrangement  between  the  obligors,  he  received  but 
$1000,  and  his  co-obligor  $5000,  of  the  amount  of  the 
loan  ;  that  as  to  the  $5000,  he  is  a  mere  security  for  John 
R.  Thompson,  and  that  he  is,  therefore,  entitled  to  have 
the  $5000  paid  first  out  of  the  property  of  John  R.  Thomp- 
son. As  between  the  co-obligors  and  mortgagors,  this 
claim  is  just  and  equitable;  but  it  is  resisted  on  the 
part  of  the  holder  of  the  second  mortgage  given  by  John 
R.  Thompson,  as  prejudicial  to  his  rights.  The  com- 


276  CASES  IN  CHANCERY. 

Lavalette  v.  Thompson. 

plainant's  mortgage  appears,  on  its  face  and  by  its  registry, 
to  be  given  for  the  joint  debt  of  both  mortgagors,  and  for 
the  payment  of  which,  in  construction  of  law,  they  were 
equally  liable.  The  encumbrance  rested  equally  on  the  pro- 
perty of  each.  He  was  justified,  therefore,  in  taking  a  second 
encumbrance  on  the  property  of  John  R.  Thompson,  relying 
on  the  information  furnished  by  the  record,"  that  it  was  sub- 
ject only  to  a  mortgage  of  $3000,  one  equal  half  of  the  joint 
debt  of  the  two  mortgagors.  Of  the  arrangement  between 
the  mortgagors  themselves,  neither  the  mortgagee  nor  his  as- 
signee had  any  actual  notice.  They  relied,  as  they  were  jus- 
tified in  doing,  upon  the  registry.  7  Johns.  Ch.  R.  16. 

As  between  the  mortgagors,  the  statute  of  frauds  is  in- 
operative. The  trust  is  a  resulting  trust,  and  therefore  valid, 
though  not  in  writing.  But  as  against  a  bonafide  purchaser. 
a  secret  trust  not  in  writing  is  void. 

An  innocent  purchaser  is  not  liable  to  a  latent  equity,  of 
which  he  was  ignorant.  Reilly  v.  Mayer,  1  Beasley  59. 

A  mortgagee  is  a  purchaser  of  the  mortgaged  premises 
within  the  intent  and  meaning  of  the  statute  of  frauds.  Led- 
yard  v.  Butler,  9  Paige  132. 

As  against  the  rights  of  subsequent  mortgagees  as  bona 
fide  purchasers  from  John  R.  Thompson,  ,the  equity  subsist- 
ing against  him  in  favor  of  his  co-mortgagors  cannot  be  en- 
forced. They  are  entitled  to  have  the  property  of  the  co- 
mortgagors  equally  appropriated  for  the  payment  of  the  joint 
debt,  in  accordance  with  the  legal  effect  of  the  contract  as 
recorded. 

The  fact  that  a  separate  lot  of  John  R.  Thompson  was  in- 
cluded in  the  mortgage,  in  no  wise  affects  the  question  at 
issue,  nor  are  the  rights  of  the  encumbrancers  at  all  altered 
by  the  partition  subsequently  made  between  the  mortgagors. 


FEBRUARY  TERM,  1861.  277 


Wilson  v.  Brown. 


GARRET  WILSON  vs.  WILLIAM  BROWN  and   MARY  ANN 
BROWN,  his  wife. 

1.  To  entitle  a  party  who  pays  the  debt  of  another  to  the  rights  of  the 
creditor  by  subrogation,  the  debt  must  be  paid  at  the  instance  of  the  debtor, 
or  the  person  paying  it  must  be  liable  as  surety  or  otherwise  for  its  pay- 
ment. 

2.  Where  the  title  to  land   is  in  a  married  woman  as  her  separate  pro- 
perty, she  and  her  husband  living  separate,  and  money  is  paid  and  ad- 
vanced at  her  instance  and  for  her  benefit,  a  mortgage  executed  by  her 
alone  to  secure  such  advances  will  be  a  valid  and  equitable  lien  on  such 
property. 

Strong,  for  complainant. 
Schenck,  for  defendants. 

THE  CHANCELLOR.  The  complainant's  bill  is  filed  for 
the  foreclosure  of  two  mortgages  given  to  the  complain- 
ant. The  first  is  executed  by  Brown  and  wife,  on  the 
25th  of  March,  1857.  The  second  is  executed  by  Mary 
Ann  Brown  alone,  on  the  1st  of  April,  1858.  As  to  the 
first  mortgage,  there  is  no  dispute.  The  whole  contro- 
versy relates  to  the  second  mortgage.  A  decree  pro  con- 
fesso  was  taken  against  the  husband.  The  wife  was  per- 
mitted to  answer  alone.  The  material  ground  of  defence 
disclosed  by  the  answer  is,  that  the  defendant  is  a  married 
woman,  and  that  therefore  the  bond  and  mortgage  exe- 
cuted by  her  are  absolutely  void. 

The  material  facts  of  the  case,  as  disclosed  by  the  plead- 
ings and  evidence,  are,  that  William  Brown  left  his  wife 
and  removed  from  this  state  in  1857.  On  the  24th  of 
November,  1857,  a  judgment  was  recovered  against  him 
in  the  Middlesex  Circuit,  upon  which  a  writ  of  fieri  facias 
issued,  and  was  levied  upon  two  lots  of  the  defendant  in 
South  Brunswick,  viz.,  upon  the  lot  covered  by  the  com- 
plainant's mortgage  for  $500,  and  upon  another  lot  of 
about  four  acres.  The  first  lot,  being  offered  for  sale  by 


278  CASES  IN  CHANCERY. 

Wilson  v.  Brown. 

the  sheriff  under  the  execution,  was  struck  off  to  Mrs. 
Brown  for  $236,  the  amount  due  upon  the  execution,  and 
the  premises  were  conveyed  to  her  by  the  sheriff.  The 
purchase  money  bid  for  the  premises  was  paid  to  the 
sheriff  by  Wilson,  the  complainant,  and  the  claim  of  the 
plaintiff  in  execution  was  satisfied.  On  the  1st  of  April, 
1858,  Mary  Ann  Brown  gave  her  individual  bond  and 
mortgage,  in  her  husband's  absence  and  without  his  con- 
sent, to  the  complainant  for  the  purchase  money  thus 
advanced  by  him.  This  mortgage,  which  is  now  in  dis- 
pute, covers  both  the  lots  upon  which  the  execution  was 
levied,  including  not  only  the  lot  conveyed  by  the  sheriff 
to  Mrs.  Brown,  but  also  the  four-acre  lot,  the  title  to 
which,  so  far  as  appears  by  the  pleadings,  remained  in 
the  husband. 

These  further  facts  are  established  by  the  evidence, 
which  are  disclosed  neither  by  the  bill  or  answer,  viz.,  that 
before  Brown  left  the  state,  a  deed  of  separation  was  exe- 
cuted between  him  and  his  wife ;  that  on  the  29th  of 
August,  1857,  Brown  and  his  wife  executed  a  conveyance 
of  both  the  lots  in  question  to  Aaron  D.  Messerole,  who 
by  a  deed  of  the  same  date  re-conveyed  them  absolutely 
to.  the  wife.  At  the  time  of  the  sheriff's  sale,  therefore, 
under  the  execution  against  the  husband,  the  title  to  all 
the  real  estate  of  the  husband  was  in  the  wife,  subject, 
however,  to  the  debts  of  the  husband,  as  the  conveyance 
to  her  was  without  consideration  and  void  as  against  the 
husband's  creditors. 

Upon  the  case  made  by  the  bill  the  complainant  insists 
— first,  that  having  paid  and  satisfied  the  claim  of  the 
execution  creditor  against  Brown,  he  is  entitled  to  be 
subrogated  in  the  place  of  the  creditor,  and  to  have  all 
his  remedies  for  the  recovery  of  the  money.  There  are 
decided  objections  to  the  validity  of  this  claim. 

1.  To  entitle  a  party  who  pays  the  debt  of  another  to 
the  rights  of  the  creditor  by  subrogation,  the  debt  must 
be  paid  at  the  instance  of  the  debtor,  or  the  person  paying 


FEBRUARY  TERM,  1861.  279 

Wilson  v.  Brown. 

it  must  be  liable,  as  security  or  otherwise,  for  its  payment. 
1  Leading  Cases  in  Equity  154,  et  seq.,  notes. 

The  complainant  was  not  liable  for  the  debt,  nor  was  it 
paid  by  him  upon  any  agreement  with  the  debtor.  In  fact, 
the  debt  was  not  paid  by  the  complainant  at  all.  The  exe- 
cution was  satisfied  out  of  Brown's  property,  by  a  sale  under 
the  execution.  The  money,  therefore,  was  not'  advanced  by 
the  complainant  to  pay  Brown's  debt,  but  to  enable  Mrs. 
Brown,  who  purchased  at  the  sale,  to  pay  the  purchase  money. 
The  execution,  moreover,  is  satisfied,  the  debt  is  not  trans- 
ferred, but  extinguished,  and  there  are  no  rights,  under  the 
judgment  and  execution,  which  the  complainant  could  acquire 
by  subrogation. 

2.  The  complainant  relies,  in  the  second  place,  upon  the 
bond  and  mortgage  executed  by  Mrs.  Brown,  as  a  valid 
security  upon  her  separate  property. 

Upon  the  facts  disclosed  by  the  evidence,  viz.,  that  the  title 
to  this  land  was  in  the  wife,  as  her  separate  property  j  that 
the  husband  and  wife  were  living  separate,  and  that  the 
money  paid  by  the  complainant  was  advanced  at  the  instance 
of  the  wife,  and  for  her  sole  use  and  benefit,  the  encumbrance 
of  the  mortgage  is  a  valid  lien,  in  equity,  upon  the  property 
of  the  wife. 

At  the  time  of  the  execution  of  the  bond  and  mortgage, 
Mary  Ann  Brown,  being  a  married  woman,  had  no  power  to 
bind  herself,  personally,  by  bond,  or  to  make  a  valid  convey- 
ance of  her  real  estate.  As  a  bond  and  mortgage  at  common 
law,  they  are  invalid.  The  bond  is,  nevertheless,  in  equity, 
an  acknowledgment  of  a  debt  due  from  her  to  the  complain- 
ant. That  debt  is  shown  to  be  due  on  her  account,  and  for 
which  her  separate  property,  in  equity,  is  liable. 

The  mortgage,  moreover,  operates  as  an  appointment  of 
her  separate  property,  for  the  payment  of  that  debt. 

The  complainant  is,  therefore,  entitled  to  a  decree  in  equity, 
for  a  sale  of  both  lots,  under  the  bond  and  mortgage  of 
Mary  Ann  Brown. 


280  CASES  IN  CHANCERY. 

Yates  v.  Yates. 

It  is  objected,  however,  that  neither  the  frame  nor  the 
prayer  of  the  bill  is  adequate  to  this  relief. 

I  think  that  an  amendment  of  the  bill  is  necessary.  It 
will  be  permitted  to  be  made,  if  desired,  without  costs.  The 
facts  do  not  appear  to  have  been  discovered  by  the  complain- 
ant till  the  very  close  of  the  evidence.  Had  the  defendant, 
by  her  answer,  disclosed  the  whole  truth,  as  she  knew  it  to 
be,  the  amendment  might  have  been  made  at  an  earlier  day. 

I  think  the  amendment  necessary,  because,  upon  the  case, 
as  made  by  the  bill,  at  the  time  of  the  execution  of  the  mort- 
gage by  Mary  Ann  Brown,  the  title  to  the  four-acre  lot  was 
in  her  husband.  Her  mortgage,  clearly,  could  create  no  valid 
encumbrance  upon  the  land  of  her  husband.  As  to  the  other 
lot,  which  is  covered  by  the  $500  mortgage  of  the  complain- 
ant, the  bill  shows  that  the  title  to  the  equity  of  redemption, 
in  that  lot,  was  vested,  by  the  sheriff's  deed,  in  Mrs.  Brown, 
before  she  executed  the  mortgage  to  the  complainant.  The 
mortgage,  moreover,  was  given  for  the  purchase  money  of 
that  lot,  advanced  by  the  complainant  to  the  sheriff,  for  the 
benefit  of  Mrs.  Brown,  and  at  her  instance.  The  proceeds 
of  the  sale  of  that  lot,  after  satisfying  the  mortgage  of  $500, 
may,  under  the  bill  as  now  framed,  be  applied  to  the  payment 
of  the  complainant's  second  mortgage.  If,  however,  he  in- 
tends to  have  recourse  to  the  four-acre  lot,  also,  the  bill,  as 
already  stated,  must  be  amended. 

CITED  in  Harrison  v.  Stewart,  3  C.  E.  Or.  451 ;  Cutler  v.  Tutile,  4  C.  E. 
Or.  560 ;  Armstrong  v.  Ross,  5  0.  E.  Gr.  115 ;  Ferry  &  Akin  v.  Laible, 
12  C.  E.  Gr.  151.  " 


SARAH  JANE  YATES  vs.  HORACE  YATES. 

THE  CHANCELLOR.  The  complainant  seeks  a  divorce, 
but  the  case  made  by  the  bill  and  established  in  evidence,  is 
not  within  the  jurisdiction  of  the  court. 

The  complainant  resided  in   this  state  from  November, 


FEBRUARY  TERM,  1861.  281^ 


Marsh  v.  Marsh. 


1850,  till  June,  1854,  when  she  was  abandoned  by  her 
husband.  Since  then  she  has  resided  in  Vermont.  She  was 
not  an  inhabitant  of  this  state  at  the  time  of  filing  her  bill, 
nor  has  she  been  a  resident  of  this  state  during  the  contin- 
uance of  the  desertion  complained  of. 
The  bill  must  be  dismissed. 

CITED  in  Codding'.on  v.  Coddington,  5  C.  E.  Or.  265. 


STEWART  C.  MARSH  vs.  ELIZA  ANN  MARSH. 

A  divorce  cannot  be  had  on  the  ground  of  adultery,  if  the  husband  has 
been  reconciled  to  his  wife  after  the  adultery  committed  by  her,  or  know- 
ingly retain  her  after  she  has  committed  adultery. 


0.  S.  Halsled,  for  petitioner. 
j  for  defendant. 


THE  CHANCELLOR.  On  the  6th  of  January,  1858,  the 
complainant  filed  his  petition  in  this  court  for  a  divorce  on 
the  ground  of  adultery.  The  adultery  is  alleged  to  have 
been  committed  in  the  months  of  March,  April,  May,  June, 
and  July,  1857,  and  especially  with  one  J.  H.  G.  Haiues,  on 
the  23d  day  of  March,  1857,  at  the  boarding-house  of  the 
petitioner,  in  the  city  of  Newark. 

The  defendant,  by  her  answer,  filed  on  the  15th  of  Feb- 
ruary, 1858,  denies  the  charge  preferred  against  her  ;  and, 
further,  by  way  of  defence,  the  answer  states  that  for  some 
time  past  she  has  been  boarding  at  No.  3  Fair  street,  in  the 
city  of  Newark,  where  the  defendant  has  also  boarded,  and 
still  boards,  as  the  wife  of  the  said  petitioner,  having  occu- 
pied, and  still  occupying  the  same  apartment  and  bed  with 
the  said  petitioner,  and  where  this  defendant  and  the  said  pe- 
titioner have  and  still  do  in  all  things  maintain  the  relations 
and  intercourse  of  husband  and  wife. 


282  CASES  IN  CHANCERY. 

Marsh  v.  Marsh. 

Two  questions  are  made  by  the  pleadings  and  involved  in 
the  evidence — 

1.  Is  the  offence  charged  proved  to  have  been  committed  ? 

2.  Has  the  offence  been  condoned  ? 

Before  considering  the  evidence  upon  the  question  of 
the  guilt  or  innocence  of  the  defendant  of  the  offence 
charged,  it  will  be  proper  to  consider  the  second  question, 
viz.,  whether  the  offence,  if  committed,  has  been  condoned  ; 
for,  if  there  has  been  a  condonation  of  the  alleged  offence, 
the  complainant  is  not  in  a  position  to  enforce  his  remedy  ; 
and,  so  far  as  the  result  of  this  suit  is  concerned,  it  is  a  matter 
of  indifference  whether  the  defendant  be  guilty  or  innocent 
of  the  crime  charged. 

It  is  a  familiar  principle,  that  a  divorce  cannot  be  had  on 
account  of  adultery,  if  the  husband  has  been  reconciled  to 
his  wife  after  the  adultery  committed  by  her,  or  knowingly 
retain  her  after  she  has  committed  adultery. 

Condonation  may  be  implied  if  the  husband,  after  reason- 
able knowledge  of  the  infidelity  of  his  wife,  continues  to 
admit  her  as  the  partner  of  his  bed.  Poynter  on  Mar.  and 
Divorce  2S2. 

In  support  of  this  principle,  the  author  cites  from 
Oughions  Ordo  Judiciorum,  tit.  214,  the  following  passage: 
Though  the  party  be  proved  guilty,  as  alleged,  yet  if  the 
complainant,  before  suit  instituted,  had  notice,  at  least 
probable,  of  the  crime  committed  and  charged,  and  not- 
withstanding afterwards  had  carnal  knowledge  with  the 
guilty  party,  the  complainant  shall  have  no  decree  of  divorce, 
because,  by  this,  it  is  said  the  complainant  has  forgiven  and 
condoned  the  injury. 

Reasonable  knowledge  may  be  said  to  have  been  had 
when  information  of  a  fact  is  given  by  credible  persons, 
speaking  of  their  own  knowledge  particularly,  if  the  same 
facts  be  afterwards  proved,  and  they  become  instrumental 
in  the  proof.  Poynter  on  Mar.  and  Div.  232 ;  Dobbyn  v. 
Dobbyny  Ibid.  233,  note  z. 


FEBRUARY  TERM,  1861.  283 

Marsh  v.  Marsh. 

If  the  party  accused  of  adultery  shall  prove  that  the  accu- 
ser, before  the  commencement  of  the  suit,  had  probable 
knowledge  of  the  crime  committed,  and  yet  afterwards 
cohabited  with  the  accused,  in  such  case  the  accuser  shall 
not  obtain  a  sentence  of  divorce  for  the  crime  that  shall  be 
supposed  to  have  been  remitted.  Shefford  on  Mar.  and  Div. 
445 ;  Bishop  on  Mar.  and  Div.,  §  359. 

I  have  always  understood  (says  Doct.  Lushington,  in 
delivering  judgment  in  Dillon  v.  Dillon,)  the  legal  principle 
to  be  this,  that  when  a  husband  has  received  information 
respecting  his  wife's  guilt,  and  can  place  such  reliance  on  the 
truth  of  it  as  to  act  on  it,  although  he  is  not  bound  to  remove 
his  wife  out  of  his  house,  he  ought  to  cease  marital  cohabita- 
tion with  her.  3  Cartels  86. 

The  adultery  is  charged  in  the  complainant's  petition 
to  have  taken  place  from  March  to  July,  1857,  and  the 
act  more  especially  relied  on  is  charged  to  have  occurred 
on  the  23d  of  March,  1857.  That  occurrence  is  proved 
to  have  taken  place  upon  that  day.  If  the  witness  speaks 
truly,  it  affords  the  most  material  evidence  of  the 
defendant's  guilt.  Yet  the  only  witness  by  whom  that 
occurrence  is  proved  to  have  taken  place,  testifies  that  she 
told  the  complainant  all  that  she  saw  soon  after  it 
occurred.  She  is  sure  that  she  told  him  before  July  4th, 
1857.  Other  circumstances,  which  occurred  about  the 
same  time,  and  which  are  relied  upon  as  corroborative 
evidence  of  the  defendant's  guilt,  occurred  at  the  boarding- 
house  where  the  parties  and  many  others  lived.  They 
were  not  concealed,  but  many  of  them,  in  the  language 
of  one  of  the  witnesses  of  the  complainant,  known  to  all 
the  house. 

It  appears,  then,  as  early  as  July  4th,  1857,  the  peti- 
tioner had  not  only  probable  knowledge,  but  if  his  witness 
is  truthful,  certain  information  of  his  wife's  guilt.  He 
had  the  very  information  from  the  lips  of  the  same  witness 
upon  which  he  asks  this  court  to  pronounce  his  wife 


284  CASES  IN  CHANCERY. 

Marsh  v.  Marsh. 

guilty.  He,  at  least,  must  be  presumed  to  have  deemed  the 
witness  credible,  (for  he  has  placed  her  on  the  stand)  to  sus- 
tain his  case. 

It  is  the  very  case  stated  in  the  books  already  cited  as 
showing  reasonable  knowledge,  viz.,  information  of  the 
fact  given  by  a  credible  person  speaking  of  her  own 
knowledge,  and  the  same  fact  afterwards  proved  and  the 
informer  becoming  instrumental  in  the  proof.  It  was 
natural  to  suppose,  as  was  said  by  Doct.  Jenner,  in 
Dobbyn  v.  Dobbyn,  that  after  the  information  he  had 
received,  if  he  entertained  any  doubt  of  his  wife's  guilt,  he 
would  have  addressed  himself  to  the  persons  who  resided 
in  the  same  house  with  his  wife,  or  to  those  who  visited 
her.  All  the  facts  appear  to  have  been  fully  within  his 
reach. 

And  yet  the  petition  for  his  divorce  was  not  filed  until 
the  8th  of  January,  1858,  six  months  after  he  received  the 
information.  During  all  this  time  he  continued  to  cohabit 
with  his  wife  as  if  nothing  had  occurred;  and  not  only 
so,  but  what  seems  the  most  remarkable  feature  of  the 
case,  the  evidence  shows  conclusively  that  the  cohabita- 
tion continued  up  to  the  month  of  March,  1857,  two 
months  at  least  after  the  filing  of  the  petition.  The 
defendant,  by  her  answer,  filed  on  the  15th  February,  1857, 
states  that  she  and  her  husband  were  then  occupying  the 
same  bed  and  cohabiting  as  man  and  wife.  No  less  than 
four  witnesses  state  the  fact  that  the  parties  continued 
together  at  their  boarding-house  until  the  month  of  March, 
1857.  They  occupied  two  rooms  on  the  second  floor. 
The  petitioner  occupied  the  front  room  as  his  office.  The 
back  room  was  his  bed-room.  It  contained  but  one  bed, 
and  was  occupied  by  both  husband  and  wife.  The  pro- 
prietor of  the  house  and  his  wife  both  state  these  facts; 
though  they  did  not  see  the  parties  go  to  bed,  they  both 
suppose  that  Mrs.  Marsh  slept  in  the  bed  in  her  husband's 
bed-room.  Another  witness,  who  lived  in  the  house, 
says,  as  long  as  they  were  there  together  they  occupied 


FEBRUARY  TERM,  1861.  285 

Marsh  v.  Marsh. 

the  same  sleeping-room  ;  I  never  knew  any  difference ;  I 
suppose  they  did  ;  there  was  no  more  than  one  bed  in  it. 
Another  witness,  a  female  domestic  in  the  family,  says:  I 
was  with  Mrs.  Thompson  for  five  months;  was  there  when 
Mrs.  Marsh  left;  up  to  the  time  of  Mrs.  Marsh's  leaving, 
Doctor  and  Mrs.  Marsh  occupied  the  same  bed-chamber  and 
the  same  bed. 

The  general  presumption  is  that  husband  and  wife,  living 
in  the  same  house,  live  on  terms  of  matrimonial  cohabitation. 
Beeby  v.  Beeby,  I  Haggard's  EC.  R.  789 ;  Shelford  on  Mar. 
and  Div.  488. 

It  is  enough,  as  against  the  husband,  to  raise  a  presump- 
tion of  condonation  that  he  had  been  once  in  bed  with  his 
wife  after  knowledge  of  her  adultery.  Bishop  on  Mar.  and 
Div.,  §  364. 

But  here  a  continued  matrimonial  intercourse  is  shown, 
extending  through  weeks  and  months,  after  reasonable 
knowledge  of  the  guilt  of  the  wife  is  brought  home  to  the 
petiiioner. 

This  very  decisive  testimony  is  attempted  to  be  over- 
thrown by  the  parol  evidence  of  a  single  witness  as  to  a 
declaration  made  by  Mrs.  Marsh.  The  witness  says  :  "  She 
complained  to  me  of  being  neglected  by  Doct.  Marsh, 
and  that  others  received  his  attentions,  and  that  she  knew 
no  more  about  Doct.  Marsh  for  the  last  six  months,  as  a 
husband,  than  she  did  about  me."  The  witness  was  ex- 
amined on  the  3d  of  September,  1860.  On  his  cross-exami- 
nation, he  states  that  this  conversation  took  place  on  the 
12th  of  October,  1858,  at  the  house  of  the  defendant  in 
Broad  street.  It  is  shown,  very  clearly,  by  the  defend- 
ant's evidence,  that  she  did  not  move  into  Broad  street 
until  1859.  Whether  uttered  in  October,  1858,  or  1859, 
assuming  the  witness  to  have  been  perfectly  reliable  and 
accurate  in  his  recollection,  it  is  not  perceived  that  the  state- 
ment necessarily  impugns  in  the  least  the  fact  of  connubial 
intercourse  shown  to  have  continued  between  the  parties  for 
a  long  period. 

VOL.  ii.  s 


286  CASES  IN  CHANCERY. 

Conger  v.  Conger. 

'  It  has  not  escaped  the  attention  of  the  court  that  there  is 
evidence  of  a  transaction  strongly  tending  (if  believed)  to 
show  the  guilt  of  the  defendant,  which  occurred  in  February, 
1857.  But  there  is  a  twofold  difficulty  in  making  this  cir- 
cumstance the  ground  of  a  decree;  for  not  only  is  connubial 
intercourse  shown  to  have  continued  between  the  parties  after 
it  occurred,  but  it  is  proven  to  have  taken  place  in  the  month 
of  February,  1857,  after  the  complainant's  petition  was  filed. 

It  is  difficult  to  conceive  of  a  clearer  case  of  condonation 
than  is  established  by  the  evidence  in  this  case.  The  legal 
presumption,  from  the  facts  proved,  is,  that  the  offence  was 
forgiven.  Upon  well-settled  rules,  the  petition  cannot  be 
entertained. 

This  renders  it  unnecessary  to  examine  the  remaining  issue 
in  the  cause,  viz.,  the  question  of  the  defendant's  guilt  or 
innocence. 

The  petition  must  be  dismissed. 


FBANCIS  D.  A.  CONGEE  vs.  ELLEN  CONGEE. 

A  wife  having  left  her  home,  with  the  consent  of  her  husband,  with  the 
intent  of  spending  the  holidays  with  her  mother,  her  subsequent  change 
of  purpose,  and  refusal  to  return,  will  not  convert  such  absence  into  a 
willful  desertion,  from  the  time  of  leaving  her  home,  within  the  act  relat- 
ing to  divorces. 


THE  CHANCELLOE.  The  case  made  by  the  complainant's 
bill  is  sustained  neither  by  the  evidence  nor  by  the  report 
of  the  master.  The  bill  seeks  a  divorce  on  the  ground  of 
a  willful,  continued,  and  obstinate  desertion  of  the  com- 
plainant by  his  wife,  for  the  term  of  three  years.  The  bill 
was  filed  on  the  8th  of  December,  1860,  and  claims  that 
the  desertion  took  place  three  years  prior  to  that  time. 
The  master  reports  that  the  defendant  deserted  her  hus- 


FEBRUARY  TERM,  1861.  287 

Conger  v.  Conger. 

band  before  the  8th  day  of  December,  1860,  and  that  she 
has  absented  herself  from  him  for  the  space  of  three 
years.  That,  if  true,  is  wholly  immaterial,  for  the  report 
bears  date  on  the  7th  of  Marchi  1861.  The  master  does  not 
report  that  the  defendant  deserted  her  husband  before  the  8th 
day  of  December,  1860,  and  three  years  before  the  filing  of 
the  complainant's  bill,  which  was  the  material  point  of  in- 
quiry. He  could  not  have  intended  so  to  report,  for  the  evi- 
dence warrants  no  such  conclusion. 

The  bill  charges  that  the  wife  continued  with  her  hus- 
band till  about  Thanksgiving  day,  1857,  when  she  left  home 
professedly  on  a  visit  to  her  friends  in  Buffalo;  that  about 
two  weeks  after  she  so  left,  the  complainant  went  to  Buffalo 
and  found  her  at  her  mother's  house,  and  that  she  then  de- 
clined to  return  with  her  husband  to  Newark,  on  the  ground 
that  she  wished  him  first  to  leave  his  father's,  and  procure  a 
house  to  live  in. 

The  complainant's  father  swears  that  the  parties  were 
married  in  the  fall,  about  three  months  before  she  went  away. 
The  evidence  shows  that  the  marriage  took  place  on  the 
20#i  of  September,  1857.  This  would  fix  the  time  of  the 
defendant  leaving  home  at  or  about  the  20th  of  Decem- 
ber; and  that  this  was  about  the  time  of  her  departure  is 
rendered  highly  probable  from  the  fact  that  both  the 
witnesses  testify  that  she  left  Newark  upon  an  invita- 
tion from  her  mother  to  come  home  to  Buffalo  and 
spend  the  holidays.  The  bill  charges  that  the  husband 
went  for  her  about  two  weeks  after  she  left  him.  If 
she  left  on  the  8th  of  December,  and  the  husband  went 
for  her  in  two  weeks,  he  must  have  gone  for  her  before 
the  holidays,  which  under  the  circumstances  he  would 
not  have  done,  and  which  the  evidence  shows  he  did  not 
do.  On  the  contrary,  the  evidence  shows  that  it  was 
probably  as  late  as  the  middle  of  February  when  the  com- 
plainant went  for  his  wife.  The  circumstances  testified  to 
by  the  witness,  that  the  wife  left  her  husband  a  few  days 
after  Thanksgiving,  is  of  no  weight  whatever.  It  is  not 


288  CASES  IN  CHANCERY. 

Conger  v.  Conger. 

shown  when  Thanksgiving  day  in  1857  occurred,  and  if  it 
was,  what  is  meant  by  a  few  days  after  —  a  week,  a  fortnight 
or  a  month  ? 

But  if  it  had  been  clearly  shown  that  she  left  Newark  more 
than  three  years  before  the  filing  of  the  bill,  a  case  of  deser- 
tion for  three  years  is  not  established.  There  is  no  evidence 
that  she  left  Newark  with  any  intention  of  deserting  her  hus- 
band. She  left  Newark  and  went  to  Buffalo  upon  the  invi- 
tation of  her  mother  to  spend  the  holidays  at  home.  Upon 
this  point  the  evidence  is  clear  and  uncontradicted.  When 
her  husband  went  for  her  she  was  found  at  her  mother's 
house.  The  husband  testifies  that  when  she  left  home  it  was 
with  the  intention  of  going  on  a  visit.  He  expected  she 
would  come  back  of  course.  He  prepared  for  her  return  by 
taking  a  house,  furnishing  it  and  getting  in  his  coal.  He 
had,  it  would  seem,  no  intimation  of  her  intention  not  to  re- 
turn until  his  visit  to  Buffalo  in  February,  or  until  the  re- 
ceipt of  her  letter  on  the  1st  of  March.  If  she  left  home  with 
the  consent  of  her  husband,  with  the  bona  fide  purpose  of 
spending  the  holidays  with  her  mother,  her  subsequent  change 
of  purpose  cannot  convert  such  absence  into  a  willful  deser- 
tion of  her  husband  and  a  criminal  violation  of  her  marital 
duties. 

There  is  a  total  failure  of  evidence  to  support  the  complain- 
ant's bill.  Upon  such  evidence  it  is  not  surprising  that  the 
master  failed  to  report  in  favor  of  the  complainant.  The 
only  matter  of  regret  is  that  he  did  not  report,  in  accordance 
with  the  evidence,  unequivocally  and  directly  against  the 
prayer  of  the  bill. 

The  bill  must  be  dismissed. 


CITED  in  Driver  v.  Isriver,  1  A&ew.  353. 


FEBRUAKY  TERM,  1861.  289 


Wilson  v.  Marsh. 


WILSON  vs.  MARSH. 

1.  A  decree  will  bear  only  six  per  cent,  interest,  although  founded  on  a 
mortgage  drawing  seven  per  cent. 

2.  Decrees  in  equity,  as  well  as  judgments  at  law,  universally  bear  the 
legal  rate  of  interest,  without  regard  to  the  terms  of  the  contract,  or  to  the 
place  where  it  waa  executed,  whether  within  the  state  or  abroad. 


THE  CHANCELLOR.  The  complainant's  mortgage  was 
made  in  Essex  county,  and  bears  interest  at  the  rate  of  peven 
per  cent,  per  annum,  under  a  special  contract  for  that  pur- 
pose, made  by  authority  of  the  statute.  He  now  asks  that 
interest  be  allowed  at  the  same  rate,  upon  the  decree.  The 
decree  bears  only  legal  interest,  viz.,  six  per  cent.  A  higher 
rate  of  interest  is  permitted,  by  the  statute,  to  be  taken  in 
certain  counties,  by  special  contract  for  that  purpose.  The 
contract  is  merged  in  the  decree,  and  the  decree  is  controlled, 
not  by  the  contract,  but  by  the  statute,  which  allows  interest 
at  the  rate  of  six  per  cent. 

It  was  so  held  by  the  Supreme  Court  of  this  state,  under 
the  act  of  1823,  which  changed  the  legal  rate  of  interest 
from  seven  to  six  per  cent.  Verree  v.  Hughes,  6  Halst.  91. 

A  similar  practice  was  adopted  in  this  court.  Interest 
under  the  decree,  from  the  date  of  the  master's  report,  was 
reckoned  at  six  per  cent.  only. 

The  point  has  been  repeatedly  decided,  both  in  equity  and 
at  law.  Aldrich  v.  Sluirp,  3  Scammon  261 ;  Wemwag  v. 
Brown,  3  Blackf.  457 ;  Mason  v.  Cake,  Breese  52. 

In  the  case  last  cited,  the  judgment  was  upon  a  contract  to 
pay  money  with  interest  at  twenty  per  cent.,  a  rate  author- 
ized by  statute.  An  execution  issued  upon  the  judgment, 
for  interest  at  twenty  per  cent.,  was  quashed. 

Decrees  in  equity,  as  well  as  judgments  at  law,  in  this 
state,  universally  bear  the  legal  rate  of  interest,  without  re- 
gard to  the  terms  of  the  contract,  or  to  the  place  where  it  was 
executed,  whether  within  the  state  or  abroad. 


290  CASES  IN  CHANCERY. 

Industrial  School  District  V.  Whitehead. 

See,  further,  2  -Fonb.  Eq.  424,  note  a;  5  Gray's  R.  9,  Bar- 
ringer  v.  King;  2  Mad.  Ch.  Pr.  455;  6  Johns.  E.  283, 
Watson  v.  Fuller /  2  Chitty's  Dig.,  " Interest"  as  to  Practice 
in  Eng.  Eq. 

CITED  in  Cox  v.  Marlatt,  7  Fr.  391. 


THE  INDUSTRIAL  SCHOOL  DISTRICT  vs.  WHITEHEAD. 

1.  Every  statute  is,  by  implication,  a  repeal  of  all  prior  statutes,  so  far 
as  it  is  repugnant  thereto. 

2.  If  a  subsequent  statute  be  not  repugnant,  in  all  its  provisions,  to  a 
prior  one,  yet,  if  it  was  clearly  intended  to  prescribe  the  only  rule  that 
should  govern  in  the  case  provided  for,  it  repeals  the  original  act. 

3.  But,  unless  the  latter  statute  is  manifestly  inconsistent  with,  and 
repugnant  to  the  former,  both  remain  in  force. 

4.  There  is  nothing  in  the  act  to  establish  the  city  of  Elizabeth,  which, 
expressly  or  by  necessary  implication,  supersedes  the  trustees  of  the  incor 
porated  school  district,  or  abrogates  their  rights  of  property. 


Alwardj  for  complainants. 
R.  S.  Green,  for  defendant. 

THE  CHANCELLOR.  To  the  complainant's  bill,  the  defend- 
ant pleads  that,  by  the  act  to  establish  the  city  of  Elizabeth, 
approved  March  13th,  1855,  the  legislature  superseded  "  The 
Industrial  School  District,"  and  vested  all  their  rights,  fran- 
chises, immunities,  powers,  and  privileges  in  the  city  of 
Elizabeth,  and  in  the  board  of  commissioners  of  schools  of 
said  city. 

The  complainants  are  the  trustees  of  a  school  district, 
duly  incorporated  under  the  laws  of  this  state,  within  the 
township  of  Elizabeth.  The  defendant  was  the  superin- 
tendent of  public  schools  in  said  township,  from  April, 
1853,  to  April,  1855,  and,  during  that  period,  received 
large  sums  of  money,  to  which  the  complainants  are  enti- 
tled, and  for  which  they  now  ask  an  account  and  settle- 


FEBRUARY  TERM,  1861.  291 

Industrial  School  District  v.  Whitehead. 

ment.  The  facts  averred  in  the  bill  are  admitted  by  the 
plea,  and  for  the  purpose  of  this  issue  must  be  assumed 
to  be  true. 

The  simple  issue  raised  by  the  plea  is,  whether  the  pro- 
visions of  the  statute  in  regard  to  the  trustees  of  public 
schools  within  the  township  of  Elizabeth  are  repealed, 
and  the  rights  acquired  under  them  abrogated  by  the  city 
charter. 

It  is  admitted  that  there  is  no  express  repeal  of  any  of  the 
provisions  of  the  school  law.  The  repeal,  if  it  exists, 
must  be  by  necessary  implication.  The  ground  taken  by 
the  plea  is,  that  the  corporation  is  made  useless  or  ineffi- 
cacious by  the  terms  of  the  city  charter,  and  all  its  rights, 
franchises,  immunities,  powers  and  privileges  transferred 
to  the  city  and  to  the  school  commissioners. 

Every  statute  is  by  implication  a  repeal  of  all  prior 
statutes,  so  far  as  it  is  repugnant  thereto.  And  if  the 
subsequent  statute  be  not  repugnant  in  all  its  provisions 
to  a  prior  one,  yet  if  it  was  clearly  intended  to  prescribe 
the  only  rule  that  should  govern  in  the  case  provided  for, 
it  repeals  the  original  act.  Sedgwick  on  Statute  Law  124-5 ; 
Den,  West  v.  Pine,  4  Wash.  C.  C.  R.  691. 

But  the  repeal  of  a  statute  by  implication  is  not  favored. 
Unless  the  latter  statute  is  manifestly  inconsistent  with 
and  repugnant  to  the  former,  both  remain  in  force. 
Courts  are  bound  to  uphold  the  prior  law  if  the  two  may 
subsist  together.  The  matter  must  be  so  clearly  repug- 
nant that  it  necessarily  implies  a  negative.  Dwatris  on 
Stat.  674  ;  1  Bl.  Com.  89,  and  cases  cited,  note  34,  (Shars- 
wood's  ed.) ;  Seals  v.  Hale,  4  Howard  U.  S.  37 ;  Bowen  v. 
Lease,  5  Hill  221,  and  cases  cited,  note  a,  225. 

Applying  these  principles  to  the  facts  of  the  case,  are 
the  provisions  of  the  school  law,  under  which  the  com- 
plainants claim  their  rights  and  franchises,  repealed  by  the 
city  charter?  By  the  "act  to  establish  public  schools," 
(Nix.  Dig.  775,  §§  7,  9,)  the  trustees  of  the  several  school 
districts  are  authorized  to  determine  how  many  months 


292  CASES  IN  CHANCERY. 

Industrial  School  District  v.  Whitehead. 

in  a  year  the  school  shall  be  kept,  to  designate  a  site  for 
the  school-house,  to  provide  a  suitable  house  or  room 
where  a  school  shall  be  taught,  to  contract  with  and 
employ  a  teacher,  and  to  perform  other  duties  touching 
the  interest  and  welfare  of  the  school  and  the  means  of 
carrying  the  system  into  effect. 

By  the  supplement,  approved  March  14th,  1851,  (Nix. 
Dig.  738,  §§  9  and  10,)  a  mode  is  pointed  out  by  which  the 
trustees  of  any  school  district  may,  at  their  own  desire, 
become  incorporated,  and  be  a  body  politic  and  corporate, 
capable  of  suing  and  being  sued,  of  making  and  using  a 
common  seal,  of  taking  and  holding  such  real  estate  as 
may  be  necessary  for  school-houses,  and  of  disposing 
thereof,  and  of  taking,  holding  and  disposing  of  any  other 
estate,  real  and  personal,  that  may  be  devised,  bequeathed, 
or  given  to  them  for  the  use  of  public  schools  in  said  dis- 
trict;  and  by  the  eleventh  section  of  the  act,  the  inhabi- 
tants of  any  incorporated  school  district  are  empowered 
to  authorize  the  trustees  to  purchase  land,  to  build,  en- 
large, repair,  sell,  or  mortgage  a  school-house  or  houses, 
to  appropriate  the  money  apportioned  to  the  district,  or 
any  part  thereof,  for  that  purpose,  or  to  borrow  money 
therefor,  and  to  raise  by  taxation  for  said  purposes,  any 
such  sum  of  money  as  two-thirds  of  the  inhabitants,  duly 
assembled  for  that  purpose,  shall  agree  to.  The  money 
so  raised  by  taxation  is  directed  to  be  paid  to  the  super- 
intendent of  the  township  in  which  the  district  is  situated, 
for  the  use  of  the  said  district,  to  be  paid  out  on  the  order 
of  the  trustees  thereof. 

So  far  as  relates  to  the  duties  of  the  trustees  of  school 
districts  under  the  original  act  of  1846,  they  seem,  with 
perhaps  one  exception,  to  have  been  imposed  by  the  city 
charter  upon  the  school  commissioners  or  the  authorities 
of  the  city.  So  far,  at  least,  the  powers  and  duties  of  the 
trustees  of  the  school  districts  are  superseded  and  the  pro- 
visions of  the  prior  act  repealed. 

But  there  is  nothing  in   the  city  charter  which  can   be 


FEBRUARY  TERM,  1861.  293 

Post  v.  Stevens. 

construed  to  abrogate  or  impair  the  rights  acquired  by  the 
inhabitants  of  incorporated  school  districts  under  the  supple- 
ment of  1851.  By  authority  of  that  act,  the  trustees,  as  a 
corporation,  may  have  incurred  heavy  debts.  No  provision 
is  made  by  the  city  charter  for  the  payment  of  those  debts. 
They  may  have  acquired,  in  addition  to  the  amount  raised  by 
taxation,  valuable  estate,  real  and  personal,  by  gift,  devise  or 
bequest.  The  right  to  all  this  property  is  vested  in  the  cor- 
poration. The  city  charter  does  not  interfere  with  that  right 
of  property.  It  was  manifestly  the  design  of  the  legislature 
to  encourage  the  promotion  of  learning,  and  to  induce  liberal 
appropriations  in  support  of  common  schools,  by  assuring  to 
the  inhabitants  of  each  school  district  the  exclusive  use  and 
enjoyment,  for  the  purposes  of  education,  of  all  money  thus 
appropriated  by  them,  or  acquired  by  gift,  devise  or  bequest. 
True,  it  is  to  be  used  solely  for  the  purposes  of  education, 
but  that  does  not  affect  their  right  of  property.  Though  dedi- 
cated to  a  public  purpose,  as  against  the  city,  it  belongs  in 
equity  to  the  inhabitants  of  the  school  district  as  much  as  the 
city  property  belongs  to  it,  as  against  the  rest  of  the  county. 

There  is  nothing  in  the  city  charter  which  expressly  or  by 
implication  supersedes  the  trustees  of  the  incorporated  school 
district,  or  abrogates  their  rights  of  property. 

The  plea  must  be  overruled,  with  costs. 

CITED  in  Slate,  Mor.  and  Essex  It.  R.  Co.,  pros.,  v.  Comm'rs  of  Taxa- 
tion, 8  Vr.  230 ;  State,  North  Ward  flat.  Bank,  pros.,  v.  City  of  Newark, 
,  10  Vr.  391. 


JOHN  A.  POST  and  others  vs.  ABRAHAM  STEVENS,  JR., 
and  CORNELIUS  BERGEN,  Executor  of  Abraham  Ste- 
vens, deceased. 

"Where  the  necessity  for  filing  the  bill  was  occasioned  by  the  misconduct 
of  the  defendants  as  executors,  in  omitting  to  inventory,  and  in  refusing 
to  account  for  moneys  which  were  due  the  estate,  no  costs  will  be  allowed 
them  out  of  the  estate. 


294  CASES  IN  CHANCERY. 

Post  v.  Stevens. 
Woodruff,  for  complainants. 

Gledhill,  for  defendants. 

THE  CHANCELLOR.  The  bill  was  filed  by  the  residuary 
legatees  under  the  will  of  Abraham  Stevens,  deceased,  for 
a  settlement  of  the  estate,  and  the  recovery  of  the  shares 
of  the  estate  to  which  the  complainants  are  respectively 
entitled.  The  bill  charges  that  Abraham  Stevens,  Jr.,  one 
of  the  executors,  was  indebted  to  the  testator,  at  the  time 
of  his  death,  in  about  the  sura  of  $2000,  and  that  there 
were  large  amounts  due  from  other  individuals,  none  of 
which  were  included  in  the  inventory  of  the  estate.  The 
bill  charges  fraud  as  against  Stevens,  one  of  the  executors, 
and  a  breach  of  duty  on  the  part  of  the  other  executor, 
in  knowingly  permitting  omissions  to  be  made  in  making 
out  the  inventory.  The  principal  controversy  in  the  cause 
related  to  the  debt  due  from  one  of  the  executors  to  his 
father,  the  testator.  By  the  decree  of  the  Chancellor,  made 
at  October  Term,  1857,  this  claim  was  established,  and 
Stevens  was  required  to  account  for  the  amount  of  two 
notes,  given  by  him  to  his  father  in  his  lifetime,  which 
were  not  included  in  the  inventory,  and  which  now  amount, 
as  appears  by  the  master's  report,  with  interest,  to  $1923.21. 
The  other  charges  against  the  executor  were  held  not  to 
be  sustained  by  the  evidence.  From  this  decree  an  appeal 
was  taken  by  the  executors,  and  the  Chancellor's  decision 
affirmed  with  costs. 

The  master  having  taken  and  stated  the  account  of  the 
executors,  and  no  exception  having  been  taken  thereto,  the 
question  of  costs  and  commissions  is  now  submitted  for  ad- 
justment by  the  court. 

On  examining  the  master's  report,  the  question  of  costs 
appears  to  have  been  decided  by  the  master  adversely  to 
the  executors.  But  as  the  schedule  referred  to  by  him, 
containing. a  statement  of  the  costs,  is  not  annexed  to  the 
report,  and  as  the  question  was  treated  as  an  open  one  by 


FEBRUARY  TERM,  1861.  295 


Moore  v.  Vail. 


both  counsel,  I  shall  consider  the  matter  as  though  it  had 
not  been  decided  by  the  master. 

So  far  as  relates  to  the  costs  on  appeal,  the  question  has 
beeu  already  settled.  The  decree  of  the  Chancellor  was 
affirmed,  with  costs,  against  the  executors,  iu  favor  of  the 
complainants.  The  complainants  are  the  residuary  legatees 
under  the  will,  and  entitled  to  the  net  balance  of  the  estate. 
To  allow  the  executors  those  costs  out  of  the  estate  would 
virtually,  in  this  respect,  be  a  reversal  of  that  decree.  The 
claim  for  costs  in  this  court  must  also  be  disallowed.  The 
costs  have  mainly  arisen  from  an  attempt  on  the  part  of  one 
of  the  executors  to  establish  his  claim  to  be  relieved  from 
the  payment  of  certain  debts  due  from  him  to  the  testator. 
The  decree  of  the  court  is  against  them.  The  utmost  they 
can  in  equity  ask  is,  that  they  should  not  be  charged  with 
the  costs  of  the  adverse  party.  There  is  no  equity  in  re- 
quiring the  adverse  party  to  pay  their  costs  incurred  in  a 
wrongful  defence.  It  is  true  there  has  been  a  settlement  of 
the  estate,  and  that  a  part  of  the  claim  set  up  by  the  com- 
plainants was  not  established.  Yet  the  necessity  of  filing 
the  bill  and  bringing  the  cause  into  this  court  at  all,  was  oc- 
casioned by  the  misconduct  of  the  defendants  in  omitting  to 
inventory,  and  in  refusing  to  account  for  a  large  amount  of 
money  which  was  due  the  estate.  No  costs  are  allowed. 

Commissions  will  be  allowed  to  the  executors  for  their 
services,  at  the  maximum  rate  allowed  by  the  act  of  March 
17th,  1855. 


ADMINISTRATOR  OP  JONATHAN  MOORE  vs.  WALLACE  VAIL 
and  others. 

A  mortgagor  conveying  the  premises,  procured  and  delivered  to  the 
vendee  a  receipt  from  the  mortgagee  showing  that  the  interest  on  the  mort- 
gage was  paid  to  time  of  sale.  The  vendee  afterwards  sold  the  premises, 


296  CASES  IN  CHANCERY. 

Moore  v.  Vail. 

stating  that  the  interest  was  paid  as  above,  but  subsequently  re-delivered 
the  receipt  to  his  vendor,  who  gave  it  up  to  the  mortgagee.  Held,  that 
the  interest  could  not  be  recovered  against  the  second  'vendee  on  a  fore- 
closure of  the  mortgage. 

J.  V.  Voorhees,  for  complainant. 
Beasley,  for  defendants. 

THE  CHANCELLOR.  The  validity  of  the  mortgage  which 
the  complainant  seeks  to  foreclose  is  not  disputed.  The 
only  question  raised  by  the  evidence  is,  whether  the  com- 
plainant is  entitled  to  recover  four  years'  interest  from  the 
date  of  the  mortgage,  on  the  12th  of  April,  1853,  to  the  12th 
of  April,  1857.  The  interest,  it  is  conceded,  has  not  been 
paid.  The  defendant  relies  on  the  following  facts  to  sustain 
his  defence  to  that  part  of  the  claim. 

In  June,  1857,  Augustus  Moore,  the  mortgagor,  con- 
veyed the  premises  subject  to  the  mortgage  to  George 
Angleman,  the  purchaser,  by  the  terms  of  the  deed  en- 
gaging to  pay  the  mortgage,  with  interest  from  the  date 
of  the  conveyance,  that  being  deemed  and  computed  as  a 
part  of  the  purchase  money.  With  the  deed,  the  vendor 
delivered  to  the  purchaser  a  receipt  from  the  mortgagee 
for  four  years'  interest  on  the  mortgage  up  to  the  12th  of 
April,  1857. 

While  this  receipt  remained  in  Angleman's  possession,  on 
the  23d  of  September,  1857,  he  conveyed  the  premises  to 
Wallace  Vail,  the  purchaser,  by  the  terms  of  the  deed  engag- 
ing to  pay  the  mortgage,  with  interest  from  the  date  of  the 
conveyance.  At  the  time  of  the  conveyance,  Angleman  held 
the  receipt  of  the  mortgagee  for  the  interest  in  question.  By 
the  terms  of  the  contract,  the  interest  was  to  be  discharged 
up  to  the  12th  of  April,  1857,  and  Angleman  represented  to 
Vail  that  the  interest  had  been  paid,  though  he  did  not  ex- 
hibit the  receipt  of  the  mortgagee. 

After  the  conveyance  to  Vail,  the  mortgagor,  Augustus 
Moore,  obtained  the  receipt  of  the  mortgagee  from 


FEBRUARY  TERM,  1861.  297 

Moore  v.  Vail. 

Angleman,  upon  some  arrangement  between  themselves,  and 
returned  it  to  the  mortgagee,  by  whom  it  was  canceled. 
Augustus  Moore,  the  mortgagor,  now  alleges  that  he  obtained 
the  receipt  from  the  mortgagee,  his  father,  without  paying 
the  interest,  upon  an  agreement  that  Angleman  would, 
out  of  the  proceeds  of  the  sale  to  Vail,  pay  him  sufficient  to 
satisfy  the  interest;  that  the  receipt  was  necessary  to  clear 
the  title,  and  as  soon  as  the  money  was  received  he  would 
pay  the  interest;  that  Angleraan  failed  to  perform  his  agree- 
ment, and  that  he,  the  mortgagor,  never  did  pay  the  interest 
to  his  father. 

It  is  clear  that  the  surrender  of  the  receipt  by  Angleman, 
a/ter  he  had  parted  with  the  title,  could  in  no  wise  affect  the 
rights  of' his  vendee.  His  rights  were  settled  at  the  time  of 
the  transfer  of  title,  and  no  subsequent  act  or  declaration  of 
the  vendor  could  impair  those  rights. 

At  the  time  of  the  sale  and  conveyance  to  Vail,  Angle- 
man held  the  mortgagee's  receipt  for  the  interest  now  in 
dispute.  If  he  had  exhibited  that  receipt  to  the  pur- 
chaser, and  upon  that  evidence  of  payment  Vail  had  taken 
title,  it  is  admitted  that  the  mortgagee  could  not  recover,, 
because  he  had  enabled  the  vendor  to  practise  a  fraud  upon 
the  vendee. 

It  is  urged  that,  as  the  vendee  did  not  see  the  receipt,  it  in, 
no  wise  contributed  to  the  fraud ;  that  the  purchaser  relied 
alone  upon  the  representation  of  the  vendor,  and  that  the 
receipt  was  not  used  as  an  instrument  of  fraud. 

But  if  the  receipt  was  not  seen  by  the  purchaser,  it 
nevertheless  was  held  by  the  vendor,  and  was  delivered  to. 
him  for  the  express  purpose  of  enabling  him  to  sell  clear  of 
the  charge  of  the  interest,  the  payment  of  which  was  admitted 
by  the  receipt.  It  enabled  the  vendor  to  represent  that  the 
interest  was  satisfied,  and  not  only  justified  him  in  making 
the  representation  but  enabled  him  to  sustain  his  assertion 
by  the  production  of  the  receipt,  if  its  production  had  been, 
demanded. 

Thus    far   it   has   been  assumed   that   the  statement  of 


298  CASES  IN  CHANCERY. 

Moore  v.  Vail. 

Augustus  Moore  is  true,  and  that  Angleman.  when  he 
took  his  title  and  came  into  the  possession  of  the  receipt, 
knew  that  the  interest  had  not  been  paid.  This  clearly 
would  render  the  receipt  in  Angleman's  hands  nugatory, 
and  place  the  defence  exclusively  on  the  ground  that  the 
mortgagee,  by  giving  the  receipt,  had  enabled  Anglernan 
to  perpetrate  a  fraud  upon  his  vendee.  But  this  is  by  no 
means  the  strongest  view  of  the  defence.  Angleman  tes- 
tifies that  he  had  no  knowledge  that  the  interest  had  not 
been  paid  by  the  mortgagor  until  after  he  had  conveyed 
the  premises  to  Vail,  and  the  evidence  warrants  the 
belief  that  this  statement  is  in  accordance  with  the  truth. 
The  receipt  for  this  interest  was  delivered  to  Angleman 
with  his  title,  in  accordance  with  the  contract  of  the 
mortgagor,  that  he  would  discharge  this  interest.  It  is 
hardly  probable  that  when  delivering  to  his  vendee  a 
receipt  as  evidence  that  he  had  complied  with  his  contract, 
and  paid  the  interest,  lie  at  the  same  time  informed  him 
that  the  interest  had  not  been  paid.  It  is  evident,  more- 
over, that  the  mortgagor  recognized  the  receipt  as  a  valid 
subsisting  instrument  in  the  hands  of  Angleman,  and  that 
he  paid  a  valuable  consideration  to  get  it  out  of  his  hands 
after  the  title  had  been  made  to  Vail.  Adopting  this  as  the 
true  theory  of  the  case,  justified  by  the  weight  of  the  evidence, 
there  is  no  room  for  question  that  Vail  holds  these  premises 
clear  of  the  charge  of  the  interest  in  controversy.  It  was  no 
encumbrance  on  the  lands  while  the  title  remained  in  Angle- 
man, and  from  Angleman  the  title  passed  in  the  same  condi- 
tion to  Vail. 

In  either  aspect  of  the  case,  Vail  is  entitled  to  a  credit  upon 
the  mortgage  for  the  four  years'  interest  specified  in  the 
receipt.  If  the  mortgagee  suffers  loss  his  estate  must  look 
so  the  mortgagor  for  indemnity. 

No  costs  will  be  allowed  as  against  either  party  in  favor 
of  the  other;  not  against  the  defendant,  for  he  has  been 
successful  in  his  defence  upon  the  matter  in  controversy, 
and  because  no  more  has  been  recovered  against  him  than. 


FEBRUARY  TERM,  1861.  299 

McPherson  v.  Housel. 

he  offered,  and  was  willing  to  pay  before  the  commencement 
of  the  suit;  not  against  the  complainant,  because  no  legal 
tender  or  appropriation  was  made,  and  he  was  compelled  to 
•esort  to  equity  to  establish  his  right  and  recover  the  amount 
lue  upon  the  mortgage.  At  the  time  of  the  tender,  and  as  a 
•ondition  of  the  payment  of  the  money,  the  defendant  de- 
manded a  surrender  of  the  bond  and  mortgage.  This  clearly 
•endered  the  tender  ineffectual,  either  to  stop  the  accruing  of 
^nterest  or  to  entitle  the  defendant  to  costs.  Gammon  v. 
Stone,  I  Vesey,  Sr.,  339 ;  Beames'  Equity  Costs  45,  and  cases 
cited  in  note  q.  See  also  Hovenden's  note  to  Lord  Cranstown 
v.  Johnston,  3  Vesey  170. 

The  amount  tendered  merely  satisfied  the  claim  of  the 
mortgagee  against  the  mortgaged  premises  in  the  hands  of 
the  purchaser.  It  did  not  extinguish  his  claim  against  the 
mortgagor.  The  interest  in  dispute  has  never  been  received 
by  the  mortgagee.  The  mortgagor,  as  it  appears  by  his  own 
evidence,  obtained  the  receipt  for  the  interest  upon  a  promise 
to  pay  it,  which  he  never  performed.  The  mortgagee,  there- 
fore, was  entitled  to  retain  the  bond  for  the  purpose  of  en- 
forcing his  claim  against  the  mortgagor. 

Decree  accordingly. 

CITED  ia  Hoy  v.  EramhaU,  4  C.  E.  Or.  568. 


ASA  McPnERSoN  vs.  GEORGE  HOUSEL. 

1.  A  person  purchasing  pendente  lite  is  subject  to  all  the  equities  of  the 
person  under  whom  he  claims. 

2.  In  a  foreclosure  suit,  the  costs  incurred  bj  the  complainant  in  re- 
sisting a  motion  on  the  part  of  the  mortgagor  to  set  aside  the  execution 
will  be  ordered  paid  out  of  the  surplus  money  in  preference  to  the  claim 
of  a  purchaser  of  the  mortgaged  premises,  who  takes  title  from  the  mort- 
gagor after  the  decree  and  before  the  motion  to  set  aside  execution. 


300  CASES  IN  CHANCERY. 

McPherson  v.  Housel. 
Van  Syckel,  for  motion. 

Allen,  contra. 

THE  CHANCELLOE.  On  the  12th  of  July,  1860,  a  final 
decree  was  made  in  this  cause  for  the  foreclosure  and  sale  of 
mortgaged  premises,  and  execution  issued  thereon. 

On  the  25th  of  July,  1860,  subsequent  to  the  decree  and 
issue  of  execution,  Housel  conveyed  the  mortgaged  premises 
in  fee  to  Asa  Snyder. 

Subsequent  to  the  date  of  this  deed,  on  the  30th  of 
August,  1860,  Housel,  the  defendant  in  execution,  ob- 
tained a  rule  to  show  cause  why  the  execution  should  not  be 
set  aside,  the  decree  opened  and  the  defendant  admitted  to 
defend  the  suit.  On  the  18th  of  October,  the  rule  to  show 
cause  was  discharged,  with  costs,  and  the  sheriff  ordered  to 
proceed  to  a  sale  of  the  mortgaged  premises,  according  to  the 
command  of  the  execution.  On  the  20th  of  October,  the 
deed  to  Snyder  was  recorded. 

The  mortgaged  premises  having  been  sold,  and  the 
surplus  money  brought  into  court,  Snyder,  the  owner  of 
the  mortgaged  premises,  asks  that  the  surplus  money  be 
paid  to  him.  The  complainant  in  the  suit  has  also  filed  his 
petition,  asking  that  out  of  the  surplus  moneys  arising  from 
the  sale  he  should  be  paid  and  satisfied  his  taxed  costs  incur- 
red in  obtaining  the  discharge  of  the  rule  to  show  cause  why 
the  decree  should  not  be  opened. 

The  material  facts  are  agreed  upon  by  the  counsel  of  the 
respective  petitioners. 

The  only  question  is,  whether  the  complainant  in  the 
foreclosure  suit  is  entitled  to  have  the  costs  incurred  by 
him  in  setting  aside  the  rule  to  show  cause  paid  out  of 
the  proceeds  of  the  sale  of  the  mortgaged  premises. 
These  costs  are  clearly  a  part  of  the  cost  of  the  foreclos- 
ure suit,  necessarily  incurred  by  the  mortgagee  in  en- 
forcing his  remedy  against  the  mortgaged  premises.  Had 
the  rule  to  show  cause  been  obtained  before  the  execu- 


FEBRUARY  TERM,  1861.  301 

McPherson  v.  Housel. 

tion  issued,  the  costs  of  discharging  it  would  have  been  in- 
cluded in  the  execution  as  a  part  of  the  sum  to  be  levied. 
The  complainant's  equitable  right  to  the  costs  is  not  altered 
by  the  fact  that  the  rule  to  show  cause  was  obtained  after 
execution  issued.  As  between  the  complainant  and  the  de- 
fendant in  the  suit,  the  complainant's  right  to  be  paid  his 
costs  out  of  the  proceeds  of  the  sale,  is  clear. 

But  it  is  insisted,  on  behalf  of  the  alienee  of  the  mort- 
gagor, that,  having  purchased  the  premises  after  final  decree, 
and  fieri  facias  issued  thereon,  he  took  the  premises  subject 
only  to  the  encumbrance  of  the  decree  and  execution,  and 
that  to  impose  upon  the  estate  conveyed  the  costs  subse- 
quently created,  would  encumber  the  estate  conveyed  with 
the  costs  of  the  litigation  of  the  grantor,  after  he  had  parted 
with  the  title. 

But  the  rule  is  well  settled  that  a  person  purchasing  pen- 
dente  lite  is  treated  as  a  purchaser  with  notice,  and  is  subject 
to  all  the  equities  of  the  person  under  whom  he  claims,  and 
he  who  purchases  during  the  pendency  of  the  suit,  is  bound 
by  the  decree  that  may  be  made  against  the  person  from 
whom  he  derives  title,  and  the  litigating  parties  are  exempted 
from  taking  any  notice  of  the  title  so  acquired.  Story's  E^ 
PL,  §  156;  1  Story's  Eq.  Jur.t  §  406. 

••  It  seems  to  follow,  as  a  necessary  consequence,  that  the 
alienee  of  mortgaged  premises,  during  the  pendency  of  a  suit 
for  foreclosure  and  sale,  takes  title  subject  to  the  burthen  of 
all  the  costs  which  may  be  incurred  by  the  mortgagee,  until 
the  final  determination  of  the  cause. 

The  fallacy  of  the  opposite  argument  consists  in  as- 
suming that  the  decree  is  the  termination  of  the  suit,  and 
that  determines  all  the  costs  for  which  the  alienee  can  be 
legitimately  liable.  But  the  mortgagor  is  entitled  to 
contest  the  validity  of  the  decree,  either  by  applying  to 
this  court  to  set  it  aside,  or  by  appeal  to  a  higher  tribunal, 
and  in  either  event,  the  costs  of  this  further  litigation  form 
a  legitimate  part  of  the  costs  of  the  suit,  which  the  mort- 

VOL.  II.  T 


302  CASES  IN  CHANCERY. 

Van  Kuren  v.  Trenton  Locomotive  and  Machine  Manufacturing  Co. 

gagee  is  entitled  to  have  satisfied  out  of  the  proceeds  of  the 
sale  of  the  mortgaged  premises.  The  purchaser,  during  the 
pendency  of  the  suit,  took  subject  to  all  the  rights  of  the 
parties  litigant,  and  subject,  also,  to  all  burthens  created  in 
the  exercise  of  those  rights.  If  the  mortgagor,  by  the  sale, 
parted  with  all  his  interest  in  the  equity  of  redemption,  and 
had  no  legal  or  equitable  right  further  to  controvert  the 
claims  of  the  mortgagee,  it  would  have  been  competent  for 
his  alienee  to  protect  his  interests  by  applying  to  the  court  to 
prevent  further  litigation.  But,  so  far  as  appears,  the  liti- 
gation in  this  case,  subsequent  to  the  conveyance  by  the  mort- 
gagor, may  have  been  at  the  instance  of  the  alienee,  as  it 
would,  obviously,  have  enured  to  his  benefit  had  it  proved 
successful.  But)  however  this  may  be,  there  is  no  pretence 
that  the  complainant  in  the  suit  had  any  notice  of  the  aliena- 
tion, or  that  any -objection  was  interposed  to  the  continuance 
of  the  litigation,  upon  that  ground.  On  the  contrary,  the 
transfer  of  the  title  was  secret,  the  conveyance  not  being  put 
upon  record  until  after  the  final  order  in  the  cause. 

The  complainant  is  entitled  to  his  costs,  pursuant  to  the 
prayer  of  his  petition,  and  also  the  costs  of  the  present  applica- 
tion, out  of  the  surplus  money  arising  from  the  sale.  The  bal- 
ance, if  any,  is  due  to  the  purchaser  of  the  equity  of  redemption. 

CITED  in  Allen  v.  Morris,  5  Vr.  160. 


ISAAC  VAN  KUREN  vs.  THE  TRENTON  LOCO'MOTIVE  AND* 
MACHINE  MANUFACTURING  COMPANY  and  others. 

1.  A  nice  or  doubtful  question  of  law  will  not  be  decided  on  a  motion 
to  dissolve  an  injunction,  but  will  be  reserved  for  tbe  final  hearing. 

2.  An  injunction  restraining  interference  with  the  complainant  in  the 
exercise  of  his  rights  as  a  partner  of  the  defendants,  will  be  dissolved,  on 
the  clear  averment  in  the  answer,  that  the  partnership  was  dissolved  by 
mutual  consent. 

8.  Can  a  corporation  enter  into  a  co-partnership  ?     Query. 


FEBRUARY  TERM,  1861.  303 

Van  Kuren  v.  Trenton  Locomotive  and  Machine  Manufacturing  Co. 
Dutcher,  for  complainant. 
Heasley,  for  defendants. 

THE  CHANCELLOR.  The  defendants  ask  a  dissolution  of 
the  injunction  on  the  ground  that  the  equity  of  the  bill  is 
denied  by  the  answer. 

The  material  charges  of  the  complainant's  bill  are  that,  on 
the  20th  of  January,  1860,  an  agreement  was  entered  into 
between  the  complainant  and  the  company,  by  virtue  of 
which  the  complainant  and  the  company  agreed  to  carry  on 
the  foundry  business  upon  the  following  terms: 

The  company  agreed  to  furnish  their  foundry,  with  all  its 
fixtures,  machinery,  facilities,  power,  wharf-room,  flasks,  and 
pattern-room,  for  the  purpose  of  manufacturing  iron  castings, 
for  the  sum  of  $4000  per  annum,  to  be  paid  out  of  the  undi- 
vided proceeds  of  the  business;  additional  tools  to  be  at  the 
joint  account  of  the  foundry. 

The  company  were  to  furnish  the  necessary  capital  to 
carry  on  the  business,  to  use  the  car-wheels  of  complain- 
ant's patent,  and  to  take  from  the  foundry  all  other  iron 
castings  used  in  their  business  at  the  regular  market 
prices. 

The  complainant,  on  his  part,  agreed  to  give  the  company 
the  exclusive  right  to  manufacture  and  sell  his  patent  rail- 
road car-wheel  and  Hurlbert's  patent  plows,  to  defend  the 
patents  in  all  cases,  and  to  give  his  personal  and  faithful 
attention  to  the  foundry  concerns. 

The  net  profits  of  the  business  to  be  equally  divided 
between  the  parties. 

The  agreement,  unless  sooner  annulled  by  mutual  consent, 
to  be  binding  for  twelve  years. 

On  the  31st  days  of  June  and  December,  in  each  year, 
an  account  of  stock  to  be  taken,  an  account  current  to  be 
made  up,  and  the  net  profits  to  be  equally  divided  be- 
tween the  parties.  At  the  close  of  the  contract,  an  ac- 
count of  the  stock  and  joint  liabilities  was  to  be  taken  by 
the  parties,  aud  an  equal  division  of  profits  made.  The 


304  CASES  IN  CHANCERY. 

Van  Kurcn  v.  Trenton  Locomotive  and  Machine  Manufacturing  Co. 

agreement  contains  other  provisions,  but  these  are  all  that  are 
pertinent  to  the  present  inquiry. 

The  bill  further  charges  that  this  agreement  consti- 
tuted the  complainant  a  partner  with  the  defendants,  and 
liable  for  the  debts  of  the  concern ;  that  the  agreement  is 
still  in  force;  that  the  complainant,  in  pursuance  of  the 
contract,  took  charge  of  the  foundry  on  the  15th  of  March, 
I860,  and  transacted  the  business  in  the  name  of  I.  Van 
Kuren  &  Company ;  that  the  net  profits  of  the  business, 
up  to  the  1st  of  January,  1861,  are  $4916.43,  one-half  of 
which  is  justly  due  to  the  complainant  from  the  machine 
company  for  bis  share  of  the  profits  of  the  eastings ;  that 
there  is  due  to  the  employees  and  workmen  in  the  foundry 
about  $1500,  payable  out  of  the  proceeds  of  the  foundry 
business,  which  sum  has  been  charged  in  account  by  the 
machine  company  to  Van  Kuren  &  Co.,  but  has  never 
been  paid  ;  and  that  the  complainant,  the  agreement  re- 
maining in  full  force,  has  been  forcibly  excluded  from  the 
management  of  the  foundry  and  of  his  interest  as  a  part- 
ner in  the  business ;  that  the  partnership  property  is 
taken  by  the  machine  company  without  the  payment 
of  the  debts  of  the  concern  or  of  the  complainant's 
share  of  the  property ;  and  that  the  company  are  in- 
solvent and  unable  to  pay  their  just  debts,  and  if  per- 
mitted to  take  possession  of  the  foundry  property,  the 
complainant  will  be  unable  to  recover  either  the  amount 
due  to  him  or  the  means  necessary  to  pay  the  debts  of  the 
concern. 

The  material  averments  of  the  bill  which  constitute  the 
complainant's  equity,  and  upon  which  his  right  to  a  continu- 
ance of  the  injunction  rests,  are — 

1.  That  the  complainant  was  and  is  a  partner  of  the  de- 
fendants, and  that  he  is  entitled  to  the  aid  of  the  court  to 
protect  him  in  the  exercise  and  enjoyment  of  his  rights  as 
partner. 

2.  That  if  the  partnership  or  agreement  is  determined, 
he  is  entitled  to  the  sum  of  $2458.21,  as  his  share  of  the 


FEBRUARY  TERM,  1861.  305 

Van  Kuren  v.  Trenton  Locomotive  and  Machine  Manufacturing  Co. 

profits  of  the  concern,  and  to  be  protected  against  liabilities 
for  its  debts,  and  that  the  defendants  should,  therefore,  be 
restrained  from  diverting  the  property  of  the  foundry  to  the 
purposes  of  the  machine  company,  until  an  account  can  be 
taken  and  the  foundry  debts  satisfied. 

It  is  objected,  first,  that  a  corporation  has  no  power  to 
form  a  partnership  with  an  individual  to  carry  on  the  busi- 
ness, or  a  part  of  the  business,  for  the  transaction  of  which 
the  company  were  incorporated.  I  do  not  think  that  this 
objection,  even  if  it  be  well  founded,  should  avail  the  defend- 
ants upon  the  present  motion.  A  nice  or  doubtful  question 
of  law  should  be  reserved  for  final  hearing.  It  is  clear  that 
these  defendants  have,  under  color  of  this  contract,  had  the 
services  of  the  complainant  and  the  use  of  his  patents  for 
the  greater  part  of  a  year,  and  they  admit  that  he  has  re- 
ceived no  remuneration  whatever.  Under  such  circum- 
stances, a  court  of  equity  would  not  suffer  the  defendants, 
except  in  a  perfectly  clear  case,  to  withdraw  the  property 
from  the  protection  of  the  court  upon  the  allegation  that 
they  had  no  power  to  make  the  contract. 

For  the  purposes  of  this  motion,  it  will  be  assumed,  there- 
fore, that  the  corporation  had  the  legal  power  to  create  the 
partnership. 

Does  the  agreement  in  fact  create  a  partnership  ?  The 
answer  of  one  of  the  defendants,  as  a  matter  of  opinion  and 
belief,  denies  that  the  agreement  does  constitute  a  partner- 
ship. It  is  a  mere  inference  or  conclusion  of  law,  and  not  a 
matter  of  fact,  and,  therefore,  not  properly  a  denial  of  the 
equity  of  the  bill. 

It  seems  too  clear  to  admit  of  dispute,  that  the  instru- 
ment, in  its  legal  effect,  does  create  a  partnership,  and 
render  the  complainant  liable  for  the  debts  of  the  con- 
cern, and  that  not  only  as  to  third  parties,  but  as  between 
the  parties  themselves.  The  joint  concern  pay  the  ma- 
chine company  $4000  per  annum  for  the  rent  of  the 
foundry  and  its  appurtenances.  The  machine  company 


306  CASES  IN  CHANCERY. 

Van  Kuren  v.  Trenton  Locomotive  and  Machine  Manufacturing  Co. 

furnish  the  capital.  The  complainant  contributes  his  ser- 
vices and  the  use  of  his  patents  ;  at  the  close  of  the  concern, 
an  account  is  to  be  taken  by  the  parties  of  the  joint  stock  and. 
joint  liabilities,  and  an  equal  division  of  profits  to  be  made. 
Can  the  legal  and  essential  ingredients  of  a  partnership  be 
more  clearly  stated  ?  It  is  urged  that  the  parties  did  not 
intend  to  create  a  partnership,  because  the  terms  partners  or 
partnership  is  nowhere  used  in  the  instrument.  It  may  be 
urged,  with  equal  truth,  that  the  term  foreman  or  superin- 
tendent, or  any  other  term  which  might  indicate  the  precise 
character  of  the  complainant's  employment,  is  carefully 
avoided,  so  that  the  intent  of  the  parties  must  be  ascertained 
from  the  legal  effect  of  the  instrument,  and  not  the  names 
employed  by  the  parties.  In  legal  effect  the  instrument  con- 
stituted a  partnership. 

Does  that  partnership  continue?  Upon  this  point  the 
answer  of  both  defendants  is  full,  direct  and  unequivocal. 
They  both  say  that  it  was  agreed  by  the  complainant  and 
the  defendants,  acting  for  the  company,  that  the  business 
connection  created  by  the  agreement  should  cease  and  deter- 
mine on  the  31st  day  of  December  last,  and  that  an  account 
of  stock  should  be  taken,  and  a  settlement  made  up  to  that 
time,  in  accordance  with  the  provision  of  the  article  of  agree- 
ment. This  is  not  new  matter.  The  complainant,  in  his 
bill,  directly  charges  that  the  contract  between  him  and  the 
company  is  still  in  full  force  and  effect,  never  having  been 
closed  or  annulled  by  the  parties  thereto.  The  answer  upon 
this  point  is  directly  responsive  to  the  charge  of  the  bill. 
The  agreement,  whether  it  constituted  a  partnership  or  not, 
was,  by  its  terms,  to  continue  for  twelve  years,  unless  sooner 
annulled  by  mutual  consent;  and  the  defendants  clearly 
could  not  determine  the  contract  of  their  own  motion,  and 
forcibly  exclude  the  defendant  from  the  possession  and  en- 
joyment of  his  rights.  Against  this  wrong  the  injunction 
was  designed  to  protect  him.  Upon  this  point  the  equity  of 
the  bill  is  fully  denied  by  the  answer. 


FEBRUARY  TERM,  1861.  307 

Van  Kuren  v.  Trenton  Locomotive  and  Machine  Manufacturing  Co. 

The  answer  also  denies  that  there  is  any  money  whatever 
due  to  the  complainant  from  the  foundry  concern,  as  his 
share  of  the  net  profits;  but,  on  the  contrary,  they  aver  that 
the  business,  during  the  whole  time  of  its  management  by 
the  complainant,  occasioned  a  constant  loss. 

The  only  remaining  ground  of  equity  in  the  bill  is,  that 
the  complainant,  by  reason  of  the  contract,  is  liable  for  debts 
due  on  the  foundry  account  to  the  workmen.  The  bill  does 
not  allege  the  existence  of  any  other  debts  than  those  due  to 
the  workmen.  The  answer  admits  that  there  is  due  to  the 
workmen  the  sum  of  $842.08,  but  alleges  that  it  is  a  debt  of 
the  machine  company  alone,  in  whose  name  all  the  contracts 
were  made,  and  by  whom  workmen  were  furnished  to  carry 
on  the  operations  of  the  foundry.  But  admitting  the  case 
made  by  the  bill  upon  this  point  to  be  uncontradicted,  as- 
suming that  there  is  due  to  the  workmen  the  sum  of  $1500, 
as  charged  by  the  complainant,  and  that,  by  reason  of  the 
partnership,  he  is  or  may  be  liable  for  the  amount,  it  consti- 
tutes no  ground  for  sustaining  the  injunction  and  continuing 
the  complainant  in  the  possession  and  control  of  the  property. 
The  utmost  that  he  could  ask  for  his  protection  would  be  the 
appointment  of  a  receiver. 

The  court  may  doubtless,  in  the  exercise  of  a  sound  dis- 
cretion, continue  the  injunction  to  the  hearing,  notwithstand- 
ing the  equity  of  the  bill  is  denied  by  the  answer.  But  this 
is  clearly  not  a  case  for  the  exercise  of  such  discretion.  On 
the  contrary,  it  is  obvious  that  the  continuing  of  the  injunc- 
tion and  keeping  the  complainant  in  the  possession  and  man- 
agement of  the  foundry,  as  the  case  now  stands  before  the 
court,  would  lead  to  serious  embarrassment  to  the  business  of 
the  defendants  without  any  corresponding  benefit  to  the  com- 
plainant. 

The  injunction  must  be  dissolved,  with  costs. 


308  CASES  IN  CHANCERY. 


Laroe  v.  Douglass. 


JACOB  S.  LARGE  and  others  vs.  MARCUS  B.  DOUGLASS, 
surviving  executor  of  Samuel  Laroe. 

I/  The  law  is  well  settled  in  this  state,  that  when  executors  jointly  set- 
tle their  final  account  they  are  jointly  liable  for  the  balance  so  ascertained. 

2.  In  such  case  the  parties  interested  may  rely  on  the  settlement,  and 
are  not  driven  to  a  discovery  in  whose  hands  the  funds  are  or  in  what  pro- 
portion the  executors  are  liable. 

3.  If  a  trustee,  by  his  own  negligence,  suffers  his  co-trustee  to  receive 
and  waste  the  trust  fund,  when  he  had  the  raeans  of  preventing  such  re- 
ceipt and  waste  by  the  exercise  of  reasonable  care  and  diligence,  he  will, 
in  such  case,  be  held  personally  responsible  for  the  loss. 


Keasbey,  for  complainants. 
Bradley,  for  defendant. 

THE  CHANCELLOR.  This  bill  ia  filed  by  two  of  the 
children  and  legatees  of  Samuel  Laroe,  deceased,  against 
his  surviving  executor,  for  an  account  of  the  estate  and 
the  recovery  of  legacies  bequeathed  by  the  will  of  the 
testator. 

The  evidence  in  the  cause  satisfactorily  establishes  the 
following  facts.  Samuel  Laroe,  the  testator,  died  on  the 
2d  of  May,  1828.  By  his  last  will,  after  making  bequests 
to  his  younger  children,  he  directs  his  real  and  personal 
estate  to  be  sold  on  the  death  or  marriage  of  his  widow, 
and  to  be  divided  equally  among  all  his  children.  Mar- 
cus B.  Douglass,  and  James  S.  Laroe,  the  eldest  son  of 
the  testator,  were  appointed  executors.  The  widow  died 
on  the  5th  of  March,  1831.  The  executors,  having  made 
sale  of  the  real  and  personal  estate,  exhibited  their  joint 
account  for  settlement  to  the  Orphans'  Court  of  the  county 
of  Morris  at  March  Term,  1836.  By  the  decree  of  settle- 
ment there  was  ascertained  to  be  a  balance  in  th«  hands 
of  the  executors  sufficient,  after  satisfying  all  tlw  specific 
legacies,  to  leave  a  fund  for  distribution  am.o.ug  ftll  the 


FEBRUARY  TERM,  1861.  309 

Laroe  T.  Douglass. 

children  pursuant  to  the  will.  The  homestead  farm  was 
sold  and  conveyed  by  the  executors,  in  1834,  to  John  and 
Abram  Laroe,  two  of  the  testator's  sons.  At  the  date  of 
this  sale  three  of  the  testator's  children  were  minors,  and 
not  entitled,  by  the  terms  of  the  will,  to  their  respective 
shares  of  the  estate.  To  secure  their  portions  a  bond 
and  mortgage  was  given  by  the  purchasers  to  the  execu- 
tors, in  the  sum  of  $1656.68,  conditioned  to  pay  to  the 
two  sons,  Peter  and  Jacob,  $613  each,  and  to  the  daughter, 
Hannah,  $430.68,  when,  by  the  terms  of  the  will,  they 
should  be  entitled  to  receive  their  respective  portions,  the 
interest  in  the  meantime  to  be  paid  to  the  executors  or  to 
any  other  person  legally  authorized  to  receive  it.  This 
bond  and  mortgage  were  held  by  the  executors  at  the  time 
of  their  final  settlement,  the  children  still  being  in  their 
minority,  and  constituted  a  part  of  the  estate  in  the  hands 
of  the  executors.  About  the  date  of  the  settlement  in  the 
year  1836,  the  mortgagors  conveyed  the  farm  to  James  S. 
Laroe,  one  of  the  executors  and  mortgagees,  the  mortgage 
debt  being  suffered  to  remain  as  a  part  of  the  purchase 
money,  and  the  mortgage  left  uncanceled  upon  record. 
At  this  period  the  bond  and  mortgage  were  in  the  hands  of 
Samuel  S.  Laroe,  who  appears  to  have  delivered  the  bond 
to  the  obligors,  but  retained  the  mortgage.  On  the  30th  of 
March,  1840,  the  legatees  still  being  under  age,  the  mort- 
gaged premises  were  conveyed  by  James  S.  Laroe  to  Alex- 
ander Davis,  who  refused  to  take  title  until  the  farm  was 
free  from  encumbrance.  The  mortgage  was  thereupon  sur- 
rendered by  James  S.  Laroe,  and  on  the  1st  of  April  was 
canceled  of  record. 

In  the  spring  of  1850  the  farm  was  sold  and  conveyed 
by  Alexander  Davis  to  Brown  and  Bigelow.  Jacob 
Laroe,  one  of  the  complainants  and  one  of  the  cestuis  que 
trust  under  the  mortgage,  objected  to  the  salej  but  after 
a  consultation  the  objection  was  waived,  and  the  title 
permitted  to  be  made.  In  the  fall  of  1850,  James  S. 
Laroe,  one  of  the  executors,  left  the  State  of  New  Jersey 


310  CASES  IN  CHANCERY. 

Laroe  v.  Douglass. 

and  went  to  Texas,  where  he  died  on  the  18th  of  March, 
1854.  On  the  9th  of  June,  1854,  this  bill  was  filed  against 
Marcus  B.  Douglass,  the  surviving  executor,  for  the  recovery 
of  the  shares  of  Jacob  and  Hannah,  two  of  the  legatees  and 
two  of  the  cestuis  que  trust  under  the  bond  and  mortgage 
taken  by  the  executors,  in  1834,  for  the  security  of  those 
shares. 

Upon  this  state  of  facts  the  first  and  most  material 
question  in  the  cause  is,  whether  the  surviving  executor 
is  liable  for  those  legacies  to  the  complainants,  admitting 
them  to  remain  unpaid.  The  bond  and  mortgage  given 
in  1834  for  the  security  of  the  legacies  were  made  to  the 
executors  jointly.  The  final  settlement  made  by  the  execu- 
tors in  1836  was  a  joint  settlement,  and  the  decree  finds 
the  balance  to  be  in  the  hands  of  the  executors.  Up  to  this 
period  Douglass  appears  to  have  had  an  active  participation 
in  the  management  of  the  estate,  if  not  its  entire  control. 
The  bond  and  mortgage  were  drawn  by  him.  After  the 
settlement  it  does  not  appear  that  he  had  any  further  active 
participation  in  the  business.  He  removed  from  the  neigh- 
borhood, and  the  bond  and  mortgage  passed  into  the  hands 
of  his  co-executor. 

The  Jaw  is  well  settled  in  this  state,  that  when  execu- 
tors exhibit  for  settlement  a  joint  account,  and  when,  by 
the  decree  of  the  Orphans'  Court  such  account  is  finally 
settled  and  allowed,  the  executors  are  jointly  charged  with 
the  balance  thus  ascertained  to  be  in  their  hands.  The 
decree  is  in  the  nature  of  a  judgment.  By  the  terms  of 
the  statute  it  is  conclusive  upon  all  parties,  none  of  whom 
will  be  permitted  to  set  up  any  matter  in  avoidance  of  its 
operation. 

This  doctrine  was  distinctly  announced  by  Chanc.  * 
Williamson  in  Dunn  v.  Executors  of  Dunn,  and  althoug 
that  decree  was  reversed  by  the  Court  of  Appeals,  the 
same  doctrine  was  subsequently  held,  and  the  principle 
upon  which  it  rests  distinctly  enunciated  by  Chancellor 
Vroom  in  Fenimore  v.  Fenimore,  2  Green's  Chan.  R.  296, 
and  note.  ' 


I 

FEBRUARY  TERM,  1861.  311 

Laroe  v.  Douglass. 

If  the  executor  is  unwilling  to  incur  joint  liability  with 
his  co-executor,  he  may  avoid  it  by  accounting  separately  for 
the  funds  which  come  to  his  hands.  Bellerjeau  v.  Executors 
of  Kotts,  1  South.  359. 

If  he  account  jointly,  and  submit  to  a  decree  finding  the 
funds  in  the  hands  of  the  executors  jointly,  the  parties 
interested  may  rely  on  the  decree,  and  are  not  driven  to 
the  necessity  of  discovering  in  whose  hands  the  funds 
are,  or  in  what  proportion  the  executors  are  liable  for 
their  loss. 

But  it  is  urged  that,  after  the  money  had  been  invested 
for  the  benefit  of  the  minor  legatees,  and  after  the  final 
settlement  of  the  estate,  the  executors  were  divested  of 
their  character  and  liability  as  executors,  and  became 
simply  trustees  for  the  estates  of  the  minor  children.  If 
this  change  of  character  involve*  a  change  of  liability  to 
the  legatees,  it  will  be  difficult  to  sustain  the  position 
either  upon  principle  or  upon  policy.  By  the  joint  set- 
tlement and  decree  thereon,  they  are  jointly  liable  as  ex- 
ecutors. Can  it  be  that  they  are  absolved  from  that 
liability  by  simply  loaning  the  money  in  their  own  names, 
or  as  executors  for  the  benefit  of  the  parties  entitled?  The 
bill  is  against  the  defendant  as  executor,  for  the  recovery  of 
legacies.  He  has  not  been  divested  of  his  office  nor  absolved 
from  his  duties  as  executor.  The  legacies  have  never  been 
paid,  either  to  the  legatees  or  to  their  trustees.  How,  then, 
is  the  defendant  to  claim  exemption  from  liability  on  the 
ground  that  he  is  not  executor,  but  a  trustee?  No  such  de- 
fence is  raised  or  suggested  by  the  answer,  nor  does  it  seem 
to  be  in  any  view  tenable. 

But,  admitting,  for  the  sake  of  the  argument,  that  the 
defendant  was  before  the  court,  not  as  executor,  but  as 
a  surviving  trustee,  is  he  exempt  from  liability  in  that 
character?  It  is  in  evidence  that  he  permitted  the  securi- 
ties for  this  money  to  be  taken  by  his  co-trustee,  by 
whom  they  were  afterwards  improperly  given  up  and  can- 
yeled.  That  co-trustee  became  the  owner  of  the  mort- 


312  CASES  IN  CHANCERY. 

Laroe  v.  Douglass. 

gaged  premises.  In  his  hands  the  encumbrance  of  the 
mortgage  debt  remained  upon  the  estate.  When  he  was 
about  to  make  sale,  Douglass  was  apprised  of  it,  and  noti- 
fied the  intended  purchaser  of  the  encumbrance.  His 
co-trustee  thereupon  called  upon  Douglass,  informed  him 
that  he  could  not  make  sale  except  by  canceling  the 
mortgage,  and  that  lie  would  pay  the  cestuis  que  trust.  If 
Douglass  did  not  consent,  he  did  not  actively  oppose  the 
meditated  wrong.  He  afterwards  wrote  to  the  clerk  of 
the  county,  requesting  him  not  to  suffer  the  mortgage  to 
be  canceled  of  record.  He  received  a  reply  from  the 
clerk  that,  if  the  mortgage  was  presented  to  him  canceled, 
he  did  not  know  that  he  could  refuse  to  cancel  it  of 
record.  He  had  then  full  knowledge  of  the  meditated 
wrong,  and  he  was  bound  to  interfere  actively  to  prevent 
it.  He  might  have  restrained  the  completion  of  the  sale 
and  the  fraudulent  surrender  of  the  mortgage.  He  might, 
at  least,  have  given  notice  to  the  intended  purchaser  of 
the  nature  of  the  encumbrance  upon  the  property,  of  his 
dissent  from  the  cancellation  of  the  mortgage,  and  thus 
have  continued  the  equitable  lien,  notwithstanding  the 
surrender  of  the  bond  and  the  fraudulent  cancellation  of 
the  mortgage.  But  the  evidence  shows  that  he  stood 
unresistingly  by  and  permitted  the  wrong  to  be  perpe- 
trated. 

The  rule  in  England  upon  this  subject  is  very  strict. 
Where  several  trustees  are  appointed,  and  have  accepted 
the  trust,  it  is  the  duty  of  each  one  to  protect  the  trust 
property  from  the  acts  of  his  colleagues;  and  if,  through 
the  neglect  of  this  duty,  any  of  the  trustees  have  been  ena- 
bled to  misappropriate  or  otherwise  occasion  any  loss  to  the 
trust  estate,  the  others,  as  a  general  rule,  will  be  personally 
answerable  to  the  cestuis  que  trust  for  the  amount  of  the  loss, 
although  they  had  not  been  engaged  iti  or  benefited  by  the 
breach  of  trust. 

So,  if  a  trustee  stand  by  and  suffer  his  co-trustee  to 
retain  the  exclusive  possession  and  control  of  the  trust 


FEBRUARY  TERM,  1861.  313 

Laroe  v.  Douglass. 

funds,  and  they  are  lost  or  wasted  by  the  co-trustee,  the 
non-acting  trustee  will  be  decreed  personally  to  make  good 
the  loss.  Hill  on  Trustees  309. 

The  rule,  as  stated  by  Mr.  Justice  Story,  is  somewhat 
less  rigid.  A  trustee  must  act  with  reasonable  diligence, 
and  in  case  of  a  joint  trust  must  exercise  due  caution  and 
vigilance  in  respect  to  the  approbation  of  and  acquies- 
cence in  the  acts  of  bis  co-trustees  ;  for  if  he  should  deliver 
over  the  whole  management  to  the  others,  and  betray 
supine  indifference  or  gross  negligence  in  regard  to  the  inter- 
ests of  the  cestuis  que  trust,  he  will  be  held  responsible.  2 
Story's  Eq.,  §  1275. 

So  if  a  trustee,  by  his  own  negligence,  suffers  his  co- 
trustee  to  receive  and  waste  the  trust  fund  when  he  has 
the  means  of  preventing  such  receipt  and  waste  by  the 
exercise  of  reasonable  care  and  diligence,  he  will  in  such 
case  be  held  personally  responsible  for  the  loss.  Story's  Eq., 
§  1283. 

If,  therefore,  the  defendant  could  divest  himself  of  the 
character  of  executor,  it  is  not  perceived  how,  under  the  evi- 
dence in  this  case,  he  could  be  relieved  from  liability. 

The  claim  is  not  barred  by  the  statute  of  limitations, 
nor  can  it  be  rejected  as  a  stale  claim,  not  entitled  to  the 
protection  or  favor  of  a  court  of  equity.  One  of  the  com- 
plainants came  of  age  in  1841,  the  other  in  1845.  Pay- 
ments were  made  by  one  of  the  executors  on  account  of 
both  the  claims  as  late  as  1850,  a  short  time  before  he 
finally  left  the  state.  The  bill  was  filed  against  the  survi- 
ving executor  in  1854,  within  three  months  after  the  death 
of  James  S.  Laroe,  and  within  four  years  of  the  date  of  the 
last  payment. 

Among  the  various  grounds  of  defence  presented  upon 
the  argument,  it  was  urged  that  Douglass  was  discharged 
from  liability  on  the  ground  that  at  the  sale  of  the  mort- 
gaged premises  by  Davis,  Jacob,  one  of  the  complainants, 
objected  to  the  sale,  but  afterwards  waived  his  objection, 
and  consented  (in  the  language  of  the  witness)  to  look  to 


314  CASES  IN  CHANCERY. 

Zabriskie  v.  Jersey  City  and  Bergen  Railroad  Co. 

his  brother  James  for  the  balance  of  his  share  of  his  father's 
estate.  If  the  mortgage  had  been  canceled,  or  the  equitable 
lien  of  the  cestuis  que  trust  upon  the  mortgaged  premises  re- 
leased by  their  own  act,  there  might  have  been  some  weight 
in  the  objection.  But  this  sale  took  place,  and  the  alleged 
conversation  occurred  in  1850,  ten  years  after  the  mortgage 
had  been  canceled  by  the  consent,  express  or  implied,  of  both 
the  mortgagees,  and  when  the  lien  of  the  mortgage  debt,  legal 
or  equitable,  was  entirely  extinguished.  The  objection  or 
consent,  therefore,  of  the  cestuis  que  trust  to  the  sale  was 
nugatory  and  could  affect  no  existing  right.  Nor  could  his 
agreeing  to  look  to  his  brother,  and  not  to  the  land,  release 
the  co-executor  from  any  existing  liability.  The  co-executor 
was  not  present,  and  the  statement  was  made  with  a  totally 
different  purpose  in  view.  It  is  highly  probable  that,  at  the 
time,  the  legatee  was  ignorant  that  the  co-executor  was  in  any 
wise  liable  for  the  legacies  due  from  the  estate. 

The  evidence  now  before  the  court  does  not  show  that  the 
legacies  have  been  paid  in  full.  The  complainants  are  enti- 
tled to  an  account.  There  must  be  a  reference  to  a  master  to 
ascertain  the  amount,  if  any,  due  to  the  complainants  re- 
spectively. 

CITED  in  Sehenek  v.  Schenck,  1  C.  E.  Or.  181. 


ZABRISKIE  vs.  THE  JERSEY  CITY  AND  BERGEN  RAH> 
ROAD  COMPANY. 

1.  A  court  of  equity  will  grant  an  injunction  to  restrain  a  public  nui- 
sance at  the  instance  of  a  party  who  sustains  a  special  injury. 

2.  But  a  mere  diminution  of  the  value  of  the  property  of  the  party  com- 
plaining, by  the  nuisance,  without  irreparable  mischief,  will  not  furnisb 
any  foundation  for  equitable  relief. 

3.  The  location  of  a  railroad  through  a  public  street  in  a  line  not  war- 
ranted by  law,  will  not  be  enjoined  at  the  instarce  of  the  owner  of  an  un- 

.improved  building  lot  Buffering  no  present  detriment. 


FEBRUARY  TERM,  1861.  315 

Zabrirtkie  v.  Jersey  City  and  Bergen  Railroad  Co. 
Weart,  for  complainant. 

Ztibt'ivkie,  for  defendants. 


THE  CHANCELLOR.  The  complainant  is  tlie  owner  of 
four  building  lots,  on  the  south  side  of  Grand  street,  in 
Jersey  City,  lying  between  Mill  creek  and  Varick  street. 
The  defendants  are  a  body  politic,  incorporated  by  an  act  of 
the  legislature  of  this  state,  approved  on  the  loth  of  March, 
1859,  with  power  to  construct  a  railroad  from  some  point  on 
the  Kill  Von  Kull,  at  or  near  Bergen  Point,  to  the  Newark 
turnpike,  with  branches  extending  to  the  ferries  south  of  the 
city  of  Hoboken. 

By  an  ordinance  of  the  common  council  of  Jersey  City, 
approved  on  the  20th  of  December,  1859,  the  defendants 
were  authorized  to  lay  a  single  track  of  iron  rails,  not 
exceeding  a  gauge  of  four  feet  ten  inches  in  width,  through 
the  ceiiirc  of  Grand  street,  from  its  junction  with  Washing- 
ton street,  to  the  westerly  boundary  of  the  city.  And  by  an 
act  of  the  legislature,  approved  on  the  17th  of  March,  1860, 
it  is  enacted  that  the  Jersey  City  and  Bergen  Railroad  Com- 
pany, in  laying  their  rails  and  constructing  their  roads  in  the 
strvets  of  Jersey  City,  shall  be  subject  to  such  conditions  as 
the  common  council  of  said  city,  by  the  ordinance  granting 
consent  to  lay  such  rails  and  construct  such  road,  shall  have 
imposed,  or  shall  impose  upon  said  company. 

That  part  of  the  defendant's  track  extending  through 
Grand  street,  from  Grove  street  westerly  to  Mill  creek, 
is  constructed  upon  the  road  of  the  Jersey  City  and  Ber- 
gen Point  Plank  Road  Company,  under  an  agreement  for 
that  purpose,  between  the  two  companies.  The  plank 
road  was  constructed  upon  a  public  highway,  by  authority 
of  an  act  of  the  legislature,  and  with  the  approbation  of 
the  townships  of  Bergen  and  Van  Vorst,  in  which,  at  the 
time,  the  road  was  located.  In  the  year  1855,  that  part  of 
Grand  street  between  Grove  street  and  Mill  creek,  was 
included  within  the  limits  of  Jersey  City,  and  has  since 


316  CASES  IN  CHANCERY. 

Zabriskie  v.  Jersey  City  and  Bergen  Railroad  Co. 

been  filled  in,  graded,  and  widened  by  the  city  authorities,  at 
the  expense  of  the  owners  of  lots  upon  the  street. 

The  railroad  track  was  laid,  and  the  cars  were  running 
upon  it,  previous  to  the  13th  of  July,  1860,  when  the  com- 
plainant's bill  was  filed.  The  gravamen  of  the  complaint  is 
that  the  railroad  track  is  not  laid  in  the  centre  of  Grand 
street,  as  required  by  the  ordinance,  but  south  of  the  centre 
line  of  the  street,  and  so  near  to  the  curb-stone  as  to  be  a 
public  nuisance,  and  an  irreparable  injury  to  the  lots  of  the 
plaintiff,  in  front  of  which  it  passes.  The  prayer  of  the  bill 
is  that  the  defendants  may  be  enjoined  from  continuing  their 
railroad  track,  as  laid  down,  and  from  running  the  cars  over 
the  same. 

There  is  no  question  of  the  power  of  the  court  to  grant 
the  injunction  prayed  for  in  the  complainant's  bill.  The 
court  will  grant  an  injunction  to  restrain  even  a  public  nuis- 
ance, at  the  instance  of  a  party  who  sustains  a  special  injury 
from  such  nuisance.  Crowder  v.  Tinkler,  19  Vesey  617; 
Corning  v.  Lowerre,  6  Johns.  Ch.  R.  439. 

It  is  equally  clear  that  the  track  of  the  railroad  through 
that  part  of  Grand  street  in  front  of  the  complainant's  lots, 
is  not  located  in  compliance  with  the  requirements  of  the  city 
ordinance.  It  is  not  in  the  centre  of  the  street,  as  the  ordi- 
nance directs  it  shall  be  laid,  but  south  of  it,  and  nearer  to 
the  property  of  the  complainant. 

Nor  is  it  perceived  that  the  fact  that  the  railroad  track,  in 
that  part  of  the  city,  is  located  upon  the  plank  road  by  virtue 
of  an  agreement  with  the  plank  road  company,  can  excuse  or 
justify  a  violation  of  the  city  ordinance.  The  plank  road 
was  laid,  by  legislative  sanction,  upon  a  public  highway. 
That  public  highway  has  since  been  included  within  the  city 
limits,  and,  as  graded  and  widened,  constitutes  one  of  the 
city  streets.  It  must  be  subject,  as  other  streets  are,  to  be 
regulated  and  controlled  by  the  city  authorities,  saving  to  the 
plank  road  company  their  corporate  rights  and  privileges. 

I  am,  nevertheless,  of  opinion  that  this  injunction  must 


FEBRUARY  TERM,  1861.  317 

Zabriskie  v.  Jersey  City  and  Bergen  Railroad  Co. 

be  denied  because  the  nature  and  extent  of  the  injury  com- 
plained of  is  not  such  as  to  warrant  the  interference  of  the 
court. 

The  injury,  as  stated  in  the  complainant's  bill,  is  that, 
by  reason  of  the  construction  of  the  railroad  south  of  the 
centre  line  of  the  street,  and  near  to  the  line  of  the  curb, 
the  complainant  will  have  no  means  of  depositing  build- 
ing materials  on  the  street;  that  the  running  of  the  cars 
will  prevent,  ready  access  to  the  complainant's  lots  with 
horses  and  carriages,  and  that  horses,  carriages  and  carts 
will  not  be  permitted  to  stand  in  the  street  in  front  of  the 
complainant's  lots  for  the  purpose  of  receiving  and  dis- 
charging passengers,  goods  and  merchandise,  and  carry- 
ing on  the  ordinary  business  of  life,  by  means  whereof 
the  complainant's  property  is  greatly  depreciated  in  value, 
and  the  complainant  deprived  of  the  ordinary  use  of  the 
same. 

At  the  time  the  bill  was  filed,  the  complainant's  lots 
lay  west  of  the  improved  part  of  Jersey  City.  They  were 
located  in  a  salt  marsh.  There  was  not  a  building  or 
other  improvement  upon  either  of  them.  There  is  no 
improvement  upon  them  now,  so  far  as  appears  by  the 
evidence  in  the  cause,  except  a  frame  slaughter-house 
upon  one  of  them.  There  is  no  present  necessity  for  dis- 
charging passengers,  goods  or  merchandise  there  in  such 
numbers  or  quantity  that  its  interruption  will  prove  a 
serious  detriment  to  the  complainant's  rights.  The  com- 
plainant alleges,  indeed,  that  the  city  is  extending  in  that 
direction ;  that  buildings  are  erected  within  one  or  two 
blocks  of  it,  and  that  the  complainant  contemplates  build- 
ing at  no  remote  period.  It  is  obvious,  from  the  evidence, 
that  it  is  not  the  location  of  the  railroad  track  that  pro- 
duces the  injury  complained  of,  but  it  is  the  running  of 
the  cars.  The  rails  will  not  interfere  with  the  deposit  of 
building  materials  nor  with  the  lading  or  unlading  of 
merchandise.  It  is  the  running  of  the  cars  and  the  ne- 
cessity of  keeping  the  track  clear  for  their  frequent  pas- 

YOL.  II.  U 


318  CASES  IN  CHANCERY. 

Zabriskie  v.  Jersey  City  and  Bergen  Railroad  Co. 

sage  that  creates  the  difficulty.  And  why  should  the 
cars  be  stopped  running  to-day,  a  line  of  public  travel  be 
interrupted,  and  the  public  convenience  be  prejudiced 
because  next  month  or  next  year  it  may  occasion  incon- 
venience or  loss  to  the  complainant?  This  aspect  of  the 
case  is  presented  very  clearly  in  the  complainant's  own 
evidence.  Mr.  Manners,  whose  opinion  as  an  intelligent 
witness  is  entitled  to  great  respect,  on  being  asked 
whether  the  railroad,  as  located,  is  an  irreparable  injury 
to  the  complainant's  property,  answers — "  I  consider  it  an 
injury,  and  a  very  great  injury,  whenever  the  property  is 
built  upon  and  occupied  for  business."  An  ingenious 
effort  was  made  to  avoid  this  difficulty  by  attempting  to 
prove  that  the  present  market  value  of  the  lots  was  se- 
riously depreciated  by  the  location  of  the  track.  The 
attempt  was  not  successful,  and  if  it  had  been  it  would  not 
have  overcome  the  difficulty.  A  mere  diminution  of  the 
value  of  property  by  the  nuisance,  without  irreparable  mis- 
chief, will  not  furnish  any  foundation  for  equitable  relief. 
Attorney- General  v.  Nichol,  16  Vesey  342;  2  Story's  Eq.,  § 
925.  It  is  too  obvious  to  admit  of  dispute  that  there  is  no 
present  injury  to  the  plaintiff's  property,  occasioned  by  the 
location  of  the  road  or  the  running  of  the  cars,  which  war- 
rants the  interference  of  this  court. 

There  is  a  further  reason  why  this  injunction  should  be 
denied.  The  location  of  this  railroad,  not  in  accordance 
with  the  city  ordinance,  is  charged  in  the  complainant's 
bill  to  be  a  public  nuisance.  If  it  operates  as  prejudicially 
to  the  rights  of  property  owners  on  the  street  as  the  bill 
alleges,  it  is  a  public  nuisance,  and  indictable  as  such ; 
and  yet  although  the  track  had  been  laid  for  months,  and 
the  road  in  active  operation,  it  does  not  appear  that  it  has 
ever  been  complained  of,  much  less  convicted  as  a  public 
nuisance.  It  is  a  settled  rule  of  the  court  in  cases  of 
public  nuisance  to  interfere  on  the  complaint  of  an  indi- 
vidual only  in  very  clear  cases  of  serious  and  special 
injury  to  the  complainant.  It  ought  not  to  interfere  when 


FEBRUARY  TERM,  1861.  319 

Zabriskie  v.  Jersey  City  and  Bergen  Railroad  Co. 

the  object  can  be  as  well  attained  in  the  ordinary  tribunals. 
Attorney-  General  v.  New  Jersey  Railroad  and  Transportation 
Company,  2  Green's  Ch.  136  ;  Angell  on  Water  -courses,  §  566. 

This  whole  subject,  moreover,  is  entirely  under  the  control 
of  the  city  council.  They  may  at  any  time  require  the  road 
to  be  constructed  in  compliance  with  the  ordinance.  The 
presumption  is  that  they  will  do  so  whenever  its  present  loca- 
tion works  a  great  public  or  private  wrong.  In  the  mean- 
time, there  can  be  no  necessity  for  the  interference  of  this 
court. 

The  injunction  must  be  denied,  and  the  complainant's  bill 
dismissed,  with  costs. 


CITED  tn  Hinchman  v.  Paterson  Horse  B.  B.  Cb.,  2  C.  E.  Or.  78  ; 

camp  v.  Paterson  Horse  B.  R.  Co.,  2  G.  E.  Or,  84  J  Mar.  and  Euae  B, 
£.  Co.  r.  Prudden,  5  0.  E.  Or.  537. 


C-A.SES 


ADJUDGED    IN 


THE  COURT  OF  CHANCERY 


OF  THE 


STATE   OF   NEW  JERSEY. 


PHILIP  GAEISS  vs.  ELIAS  L.  GAEISS  and  others. 

1.  In  case  of  a  bill  for  specific  performance  of  an  agreement  for  the  sale 
of  land,  containing  averments  of  a  parol  enlargement  of  the  time  of  pay- 
ment, possession,  and  the  erection  of  permanent  improvements,  the  injunc- 
tion will  be  dissolved  upon  the  filing  of  an  answer  denying  those  aver- 
ments. 

2.  It  is  not  necessary  that  affidavits  annexed  to  answers  should  be  taken 
upon  notice,  or  that  copies  should  be  served  on  the  adverse  party. 

3.  Where  a  motion  is  made  to  dissolve  an  injunction  upon  the  answer, 
affidavits  annexed  to  the  answer  can  only  be  read  in  reply  to  affidavits 
annexed  to  the  bill. 

MoCarter,  for  motion. 
Kingman,  contra. 

THE  CHANCELLOE.  The  bill  was  filed  to  compel  the 
specific  performance  of  an  agreement  for  the  sale  and 
conveyance  of  real  estate.  The  agreement  bears  date  on 
the  9th  of  April,  1851.  The  purchase  money  was  to  have 
been  paid  by  the  complainant,  and  the  deed  executed  to 

320 


MAY  TERM,  1861.  321 

Garias  v.  Gariss. 

him  on  the  1st  of  April,  1854.  The  purchase  money  waa 
not  paid  according  to  the  terms  of  the  agreement,  but  the 
bill  charges  that,  by  a  parol  agreement  between  the  parties, 
the  time  of  performance  was  extended;  that  the  defendant 
continued  to  pay  interest  upon  the  purchase  money;  that  he 
remained  in  possession,  and  made  valuable  improvements 
upon  the  premises,  upon  the  faith  of  the  agreement,  and  that 
he  also  paid  a  part  of  the  principal  of  the  purchase  money. 
That  the  complainant  continued  in  undisturbed  possession  of 
the  premises,  under  the  agreement,  until  1859,  when  the 
defendant,  Elias  L.  Gariss,  sold  and  conveyed  the  premises  to 
a  third  party,  who  took  title  with  full  knowledge  of  the 
complainant's  equity,  and  who  now  threatens  forcibly  to  eject 
the  complainant  from  his  possession.  The  bill  asks  a  specific 
performance  of  the  contract,  and  an  injunction  to  restrain  the 
defendants  from  interfering  with  the  complainant's  possession. 
The  party  with  whom  the  agreement  to  purchase  was  made, 
and  the  party  to  whom  the  conveyance  has  since  been  exe- 
cuted, have  answered  separately,  and  now  ask  a  dissolution 
of  the  injunction. 

The  whole  equity  of  the  bill  rests  upon  the  allegations  that 
there  was  a  part  performance  of  the  parol  agreement,  to  ex- 
tend the  time  for  the  execution  of  the  contract  of  sale ;  that 
the  complainant  continued  in  possession,  and  made  perma- 
nent improvements  on  the  premises,  relying  upon  the  faithful 
execution  of  the  agreement. 

All  these  facts  are  fully  and  explicitly  denied  by  the 
answers  and  by  the  accompanying  affidavits.  The  an- 
swer of  Elias  L.  Gariss,  with  whom  the  original  contract 
was  made,  denies  that  there  was  any  agreement  to  extend 
the  time  for  the  payment  of  the  purchase  money,  but 
avers  that  the  complainant,  having  failed  to  perform  the 
contract  on  his  part,  by  paying  the  purchase  money,  con- 
tinued in  possession  of  the  premises,  as  a  tenant,  paying 
rent  from  the  first  of  April,  1854,  until  1859,  when — the 
premises  having  been  sold  to  a  third  party — the  complain- 


322  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

ant  surrendered  possession  to  a  third  party,  who  has  since 
occupied  the  premises;  that  the  building  erected  by  the  com- 
plainant was  designed  to  have  been  erected  upon  other  lands 
belonging  to  the  complainant,  but  the  boundary  not  being 
well  defined,  was  erected  partly  upon  the  lands  of  the  defend- 
ant. The  mistake  having  been  discovered,  the  defendant,  in 
conveying  his  lot,  so  altered -the  boundary  as  to  leave  the 
building  entirely  upon  the  complainant's  premises.  These 
facts  are  fully  confirmed  by  the  answer  of  the  other  defend- 
ant. There  is  no  ground  for  continuing  the  injunction. 

The  affidavits  annexed  to  the  answers  are  inadmissible.  It 
is  not  necessary  that  affidavits  annexed  to  and  filed  with  the 
answer,  should  be  taken  upon  notice,  or  that  copies  should 
be  served  upon  the  adverse  party.  But  where  a  motion  is 
made  to  dissolve  an  injunction  upon  the  answer,  affidavits 
annexed  to  the  answer  can  only  be  used  in  reply  to  affidavits 
annexed  to  the  bill.  Rule  IX.,  §  4.  If  the  complainant 
relies  upon  the  averments  of  the  bill,  and  his  own  affidavit 
in  support  thereof,  without  the  aid  of  the  affidavits  of  third 
parties  annexed  thereto,  the  defendant  must  rely  solely  upon 
his  answer,  without  resorting  to  the  affidavits  of  third  parties. 

The  injunction  is  dissolved,  with  costs. 

CITED  in  Mulock  v.  Mulock,  11  G.  E.  Gr.  463. 


THE  NEW  JERSEY  ZINC  COMPANY  vs.  THE  NEW  JERSEY 
FRANKLINITE  COMPANY. 

THE    BOSTON    FRANKLINITE    COMPANY  vs.  THE    NEW 
JERSEY  ZINC  COMPANY. 

1.  The  usual  and  appropriate  meaning  of  the  word  "  premises,"  in  con- 
veyances, is  "  the  thing  demised  or  granted  by  the  deed." 

2.  It  is  the  inflexible  rule  of  law  that  a  deed,  except  in  casea  of  latent 
ambiguity,  must  be  construed  according  to  the  legal  effect  and  meaning  of 
its  terms,  unafFec'.ed  by  extrinsic  evidence. 


MAY  TERM,  1861.  323 

Zinc  Co.  v.  Frank! inite  Co. 

3.  A  mere  agreement  to  transfer  the  property  and  stock  of  an  incorpor- 
ated company  cannot  affect  its  legal  existence,  nor  will  the  actual  transfer 
of  all  the  real  and  personal  estate  of  the  corporation,  including  the  stock 
itself,  extinguish  its  charter. 

4.  The  Sussex  Zinc  and  Copper  Mining  and  Manufacturing  Company 
conveyed  to  the  New  Jersey  Zinc  Company  "  all  the  zinc  and  other  ores, 
except  franklinite  and  iron  ores,  found  or  to  be  found  in  or  upon  certain 
premises  ;  the  title  and  interest  of  the  former  company  became  afterwards 
legally  vested  in  the  Boston  Franklinite  Company.     It  appeared  that  the 
two  ores,  zinc  and  franklinite,  existed  in  the  mine  in  close  mechanical 
combination,  so  that  the  one  could  not  be  removed  without  the  other ;  bat 
that,  at  the  date  of  the  conveyance,  the  masses  or  veins  on  the  premises  in 
question  were  regarded  and  known  as  franklinite.     Held — 

5.  First.  That  the  exception  in  the  deed  was  not  limited  to  the  franklin- 
ite and  iron  ores,  where  they  existed  separate  and  apart  from  the  zinc. 

6.  Second.  That  the  grantor  retained  a  freehold  estate  in  the  thing  ex- 
cepted,  and  the  grantee  acquired  a  freehold  estate  in  the  thing  granted, 
and  that  the  terms  "  zinc  ores"  and  "franklinite  and  iron  ores"  were 
used  as  a  description  of  the  land  granted  and  reserved. 

7.  Third.  That  in  construing  the  deed,  reference  must  be  had,  in  order 
to  ascertain  the  intention  of  the  parties,  to  the  existing  state  of  knowledge 
of  the  subject  matter,  the  received  meaning  of  the  terms  employed,  and 
the  usages  prevailing  at  the  date  of  the  conveyance. 

8.  Fourth.  That  by  the  term  "  zinc  ores,"  as  used  in  the  deed,  was  meant 
those  veins  in  which  the  ore  of  zinc  was  the  predominating  one,  and  by 
franklinite  not  the,  pure  mineral  of  that  name,  which  was  never  found  ex- 
cept in  small  and  detached  specimens,  but  those  veins  in  which  franklinite 
predominated,  and  which  were  known  and  designated  as  franklinite  ore. 

9.  A  deed  for  a  mine,  with  mining  privileges,  is  not  a  mere  license  to 
take  away  ore,  or  the  grant  of  an  easement,  but  of  a  part  of  the  freehold. 

10.  A  court  of  equity  will  rarely  interpose  by  injunction  to  restrain  the 
working  of  mines,  until  the  right  is  established  at  law. 

Hamilton  and  McCarter,  for  frankliuite  company. 
Bradley  and  Zabriskie,  for  zinc  company. 

THE  CHANCELLOR.  On  the  24th  of  July,  1857,  the  New 
Jersey  Zinc  Company  filed  their  bill  in  this  court  for  an 
injunction  to  restrain  the  New  Jersey  Franklinite  Com- 
pany from  mining  and  carrying  away  zinc  ore,  to  which 
the  complainants  claimed  title,  from  part  of  a  tract  known 
as  the  Mine  Hill  farm,  in  the  county  of  Sussex.  The 
complainants,  by  their  bill,  claimed  title  to  all  the  metals, 


324  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

or  ores  containing  metals,  found  or  to  be  found  upon  the 
tract  in  question,  "excepting  the  metal  or  ore  called 
franklinite  and  iron  ores,  when  it  exists  separate  from  the 
zine"  They  insisted  that  the  true  intent  and  meaning  of 
the  several  indentures  under  which  they  claim  title  is, 
that  whenever,  on  the  said  premises,  there  is  an  admix- 
ture of  zinc  or  other  ore  with  the  franklinite,  they  have 
the  sole  and  absolute  right  to  the  said  ore;  and  that  the 
franklinite  company  have  no  right  to  mine  and  carry 
away  any  of  the  zinc  ores  found  on  said  premises,  no 
matter  with  what  quantity  of  franklinite  they  may  be 
found  in  connection.  They  claimed  that  zinc  was  the 
predominating  ore '  in  the  opening  where  the  franklinite 
company  were  mining ;  that  the  defendants  had  no  right 
to  the  said  ores,  and  prayed  an  injunction  to  restrain  them 
from  mining  or  carrying  away  from  the  said  tract  any  of 
the  zinc  ores  or  other  ores  found  upon  the  said  tract, 
except  franklinite  and  iron  ores,  when  they  exist  sepa- 
rate from  zinc  ore.  An  injunction  issued  pursuant  to 
the  prayer  of  the  bill.  Upon  the  coming  in  -of  the  an- 
swer, the  injunction  was  modified  so,  as  to  restrain  the  de- 
fendarits  from  mining  or  carrying  away  any  of  the  zinc 
or  other  ores  found  upon  the  premises,  except  franklinite 
and  iron  ores. 

The  franklinite  company,  by  their  answer,  admitted 
that  the  complainants  were  entitled  to  all  the  zinc  and 
other  ores  upon  the  said  tract,  except  franklinite  and  iron 
ores,  but  claimed  title  in  themselves  to  all  the  franklinite 
and  iron  ores  existing  therein.  They  alleged  that  the 
veins  of  ore  upon  the  Mine  Hill  tract  were  franklinite 
veins,  from  the  preponderance  of  that  ore  therein,  the 
ore  in  excess  giving  name  and  character  to  the  vein,  ex- 
cept in  the  case  of  the  precious  metals,  gold  and  silver,  be- 
ing found  in  appreciable  quantities;  that  franklinite  ore 
has  never  been  discovered  separate  from  zinc  ore,  and  that 
the  respective  veins  of  zinc  and  franklinite  in  the  county 
of  Sussex  contain  both  metals  mechanically  combined, 


MAY  TERM,  1861.  325 

Zinc  Co.  v.  Franklinite  Co. 

the  vein  taking  its  name  and  character  from  the  predomina- 
ting ore. 

Subsequent  to  the  filing  of  the  answer,  the  title  of  the 
New  Jersey  Franklinite  Company,  under  the  foreclosure 
and  sale  of  a  mortgage  executed  by  them,  became  vested 
in  the  "Boston  Franklinite  Company,"  a  corporation  or- 
ganized under  the  laws  of  this  state.  On  the  17th  of 
October,  1860,  the  Boston  Franklinite  Company  filed  a  bill, 
in  the  nature  of  a  supplemental  bill,  against  the  parties 
in  the  foregoing  suit,  therein  alleging  that  they  have 
become  seized  of  and  entitled  to  all  the  ores  and  minerals 
formerly  owned  by  the  New  Jersey  Frankliuite  Company 
in  the  Mine  Hill  tract,  concerning  which  the  controversy 
in  said  suit  had  arisen ;  that,  by  virtue  of  such  title,  they 
are  the  sole  owners,  and  have  the  exclusive  right  to  all 
the  franklinite  and  iron  ores  found  in  that  part  of  the 
Mine  Hill  tract  described  in  the  original  bill  of  com- 
plaint, whether  said  franklinite  and  iron  ores  are  found 
mixed  with  zinc  ores  or  separate  therefrom ;  and  that, 
having  acquired  title  pending  the  sait  against  the  New 
Jersey  Franklinite  Company,  they  cannot,  by  reason  of  the 
said  injunction,  safely  commence  operations  in  mining  the 
said  ores,  until  the  title  thereto  shall  be  determined  by  the 
court. 

They  charge  that  the  New  Jersey  Zinc  Company  are 
mining  and  carrying  away  large  quantities  of  the  ores  in 
controversy,  which  they  insist  is  franklinite  ore  and  the 
property  of  the  franklinite  company,  under  the  pretence 
that  the  said  ore  is  red  oxide  of  zinc,  because  of  the 
admixture  of  a  small  quantity  of  red  oxide  of  zinc  therein, 
under  the  claim  set  up  by  them,  in  their  original  bill,  that 
whenever  there  is  any  zinc  ore  found  on  Mine  Hill  they 
are  entitled  to  take  the  same,  no  matter  how  much  frank- 
linite may  be  found  in  connection  therewith.  They  pray 
an  account  of  all  the  ores  carried  away,  and  that  the  zinc 
company  may  be  restrained  from  mining  or  carrying 
away  any  frankliuite  or  iron  ore  found  on  Mine  Hill  afore- 


326  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

said,  or  from  mining  or  carrying  away  any  of  the  ores  or 
minerals  in  controversy  between  the  parties  in  the  origi- 
nal cause.  An  injunction  issued  pursuant  to  the  prayer  of 
the  bill. 

The  New  Jersey  Zinc  Company,  by  their  answer  to  the 
supplemental  bill,  assert  and  contend  that  the  Boston 
Franklinite  Company  are  only  the  owners  of  the  frank- 
linite  and  iron  ores  found  or  to  be  found  on  the  said  prem- 
ises when  the  said  franklinite  and  iron  ores  exist  sepa- 
rate and  distinct  from  the  zinc ;  that  by  means  of  more 
extended  openings  and  workings  of  the  main  vein  of  ore 
on  Mine  Hill,  and  more  accurate  examinations  and  analy- 
ses of  the  different  portions  thereof,  it  has  been  ascer- 
tained that  no  part  of  said  vein  consists  of  franklinite  or 
iron  ore  separate  and  distinct  from  zinc,  and  therefore 
that  no  part  thereof  can  or  does  belong  to  the  franklinite 
company,  but  the  whole  thereof  belongs  to  the  zinc  com- 
pany. 

They  further  allege,  that  whether  a  particular  ore  shall 
be  called  a  zinc  ore,  or  a  franklinite  or  iron  ore,  does  not 
depend  on  the  preponderance  in  weight  of  zinc  or  oxide 
of  zinc  on  the  one  hand,  or  of  franklinite  or  oxide  of 
iron  on  the  other,  but  on  the  relative  value  of  the  respec- 
tive products,  after  taking  into  account  the  expense  of 
extracting  the  same.  And  they  deny  that  franklinite  is 
the  principal  ingredient  taken  by  them  from  the  said  tract. 
A  large  amount  of  evidence  has  been  taken  in  support  of 
the  claims  of  the  respective  parties,  and  the  causes  are 
now  brought  on  for  final  hearing  upon  the  pleadings  and 
proofs. 

Two  issues  are  made  by  the  pleadings,  upon  the  decision 
of  which  the  rights  of  the  parties  and  the  result  of  the  cause 
depend. 

I.  Are  the  Boston  Franklinite  Company  entitled  only  to 
the  franklinite  and  iron  ores  found  on  the  said  tract,  when 
the  same  exist  separate  and  distinct  from  zinc? 

II.  Is   the   ore    in  question  a  zinc  ore,  within  the  true 


MAY  TERM,  1861.  327 


Zinc  Co.  v.  Franklinite  Co. 


construction  of  the  deeds  under  which  the  zinc  company 
claim  title? 

The  whole  controversy  depends  upon  the  decision  of 
one  or  both  of  these  issues.  If  the  first  issue  is  answered 
in  the  affirmative,  if  the  franklinite  company  are  enti- 
tled only  to  the  franklinite  and  iron  ores  when  existing 
separate  and  distinct  from  zinc,  they  have  no  title  to  the 
ores  in  controversy ;  for  it  is  alleged  by  both  parties,  and 
shown  satisfactorily  by  the  evidence  that  franklinite  is 
always  found  in  the  mines  of  Sussex  jn  mechanical  com- 
bination with  zinc,  and  never  separate  and  distinct  from 
it,  in  masses  sufficient-  to  make  it  worth  the  labor  of  min- 
ing. Neither  party  claims  title  to  the  surface  of  the  land  in 
which  the  ores  are  found.  The  zinc  company  have  an  un- 
questioned title  to  all  the  metals,  or  ores  containing  metals, 
existing  in  the  premises,  excepting  franklinite  and  iron  ore. 
The  franklinite  company  have  title  to  the  franklinite  and 
iron  ores,  when  they  exist  separate  and  apart  from  zinc. 
Who  has  title  to  the  franklinite  and  iron  ores  when  they  are 
found  in  mechanical  combination  with  the  zinc?  An  answer 
to  this  inquiry  renders  necessary  a  recourse  to  the  origin  and 
history  of  the  titles  of  the  respective  parties  to  the  premises 
in  dispute. 

On  the  10th  of  March,  1848,  Samuel  Fowler,  then  being 
the  owner  of  the  Mine  Hill  tract,  upon  which  the  ores  in 
question  are  found,  by  deed,  executed  by  himself  and 
Henrietta,  his  wife,  conveyed  to  the  Sussex  Zinc  and  Cop- 
per Mining  and  Manufacturing  Company,  for  the  consid- 
eration of  twenty  thousand  shares  in  the  capital  stock  of 
the  said  company,  "all  the  zinc,  copper,  lead,  silver,  and 
gold  ores,  and  also  all  other  metals,  or  ores  containing  metals, 
(excepting  the  metal  or  ore  called  franklinite  and  iron  ores, 
when  it  exists  separate  from  the  zinc,)  existing,  found,  or  to 
be  found  on  five  contiguous  tracts  in  the  township  of  Har- 
dyston,"  one  of  which  is  the  Mine  Hill  farm,  including  the 
tract  in  question. 

On  the  same  day,  by  deed  of  even  date,  executed  by  and 


328  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. ' 

between  the  same  parties,  Fowler  and  wife  conveyed  to 
the  Sussex  Zinc  and  Copper  Mining  and  Manufacturing 
Company  "all  the  metal,  mineral,  or  iron  ore,  usually  des- 
ignated and  known  by  the  name  of  franklinite,  found  or 
to  be  found  on,  upon,  or  in  a  certain  tract  of  land,"  in 
the  said  deed  particularly  described,  being  a  portion  of 
the  Mine  Hill  tract,  and  included,  as  it  is  understood,  within 
the  limits  of  the  tract  specified  in  the  first-mentioned  deed. 
This  last  deed,  it  is  admitted,  does  not  cover  the  premises  in 
controversy,  and  is,  in  no  wise  material  to  the  present  in- 
quiry, except  as  a  part  of  the  history  of  the  title,  .and  as 
illustrating,  by  the  phraseology  of  the  grant  in  contrast  with 
the  terms  of  the  first  deed,  that  the  significancy  of  the  ex- 
ception, which  constitutes  the  germ  of  this  controversy,  was 
fully  appreciated  by  the  parties,  or  at  least  by  the  grantor. 
In  the  one  deed,  a  conveyance  is  made  of  all  the  zinc  and 
other  metals,  or  ores  containing  metals,  existing  in  the  land, 
"  excepting  the  metal  or  ore  called  franklinite,  when  it  exists 
separate  from  the  zinc;"  in  the  other,  the  grant  is  of  "  all 
the  metal,  mineral,  or  iron  ore  usually  designated  and  known 
by  the  name  of  frauklin-ite ; "  and  the  language  of  the  ex- 
ception in  the  first  deed  is  made  the  more  significant,  and 
the  importance  attached  to  it  by  the  parties  rendered  more 
obvious,  by  a  recurrence  to  the  original  deed,  from  which  it 
appears  that  the  language  of  this  exception,  which  occurs 
twice  in  the  instrument,  was  altered  after  it  was  drawn,  and 
before  execution.  As  drawn,  the  clause  excepted  the  frank- 
linite, when  it  exists  separate  from  other  ores  or  metala,  or,  as 
it  was  afterwards  expressed,  "  excepting  the  ore  called  frank- 
linite, when  it  exists  in  a  separate,  distinct  state  from  other 
ores."  In  both  clauses  the  words  other  ores  are  erased,  and 
the  words  "  the  zinc"  inserted.  The  significance  of  this 
alteration  cannot  be  overlooked. 

Samuel  Fowler,  the  grantor  in  these  deeds,  having,'  after 
the  making  thereof,  purchased  and  procured  releases  and 
deeds  of  quit-claim  and  grants  of  and  to  the  said  pre- 


MAY  TERM,   1861.  329 

Zinc  Co.  v.  Franklinite  Co. 

tnises,  or  of  some  interest  therein,  or  some  parts    thereof, 

by  a  deed  of  confirmation,   bearing  date  on  the  day 

of  March,  1849,  acknowledged  and  recorded  on  the  26th 
day  of  May,  1849,  ratified  and  confirmed  to  the  grantees 
the  aforesaid  deeds,  and  the  grants  and  conveyances  of 
the  premises  therein,  or  in  either  of  them  described  and 
conveyed,  and  all  the  rights,  privileges  and  immunities 
therein,  or  in  either  of  them  named  and  granted.  This 
deed,  like  the  last  preceding  deed,  is  material  to  our  in- 
quiry only  because  it  recites  at  length  and  ratifies  the 
deed  of  the  tenth  of  March,  1848 ;  thus  adopting  and 
re-affirming  the  phraseology  of  the  exception  a  year  after 
the  deed  was  executed. 

This  deed,  by  its  terms,  conveyed  to  the  Sussex  Zinc 
and  Copper  Mining  and  Manufacturing  Company  all  the 
metals  and  ores  containing  metals  existing  in  the  premises, 
excepting  the  franklinite,  when  it  exists  separate  from  the 
zinc.  The  franklinite  and  iron  ores,  when  found  in  mechani- 
cal combination  with  zinc,  were  not  excepted,  and  passed  by 
the  terms  of  the  grant  to  the  grantees. 

On  the  8th  of  March,  1852,  the  Sussex  Zinc  and  Cop- 
j>er  Mining  and  Manufacturing  Company,  being  seized  of 
all  the  rights  acquired  by  virtue  of  the  foregoing  deeds 
of  conveyance,  by  deed  of  that  date,  conveyed  to  the  New 
Jersey  Zinc  Company  "  all  the  ainc  and  other  ores,  except 
franklinite  and  iron  ores,"  found  or  to  be  found  in  or 
upon  the  premises  therein  described,  which  are  the  same 
premises  described  in  the  first-mentioned  deed  from  Fow- 
ler to  the  Sussex  company,  of  the  tenth  of  March,  1848. 
And  by  another  deed,  also  bearing  date  on  the  same 
eighth  of  March,  1852,  the  Sussex  Zinc  Company  also  con- 
veyed to  the  New  Jersey  Zinc  Company  "all  the  metal, 
mineral  or  iron  ore,  usually  known  or  designated  by  the 
name  of  franklinite,  found  or  to  be  found  on,  upon  or 
in  all  that  certain  tract  of  land "  therein  described^  and 
being  the  same  tract  described  in  the  second  deed  from 
Fowler  to  the  Sussex  company,  of  the  tenth  of  March, 


330  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

1848.  These  two  deeds  to  the  New  Jersey  Zinc  Company 
of  the  eighth  of  March,  1852,  purport  to  convey  substan- 
tially the  same  rights  with  those  conveyed  by  the  two 
deeds  of  the  tenth  of  March,  1848,  from  Fowler  to  the 
Sussex  company,  except  that  in  the  deed  to  the  zino 
company,  which  covers  the  premises  in  dispute,  the 
words  "  when  it  exists  separate  from  the  zinc,"  found  in 
the  deed  from  Fowler  annexed  to  the  exception  of  the 
franklinite,  are  omitted.  The  language  of  the  descrip- 
tion of  the  premises  granted  in  the  deed  from  Fowler  to 
the  Sussex  company  is,  "all  the  zinc,  copper,  lead,  silver 
and  gold  ores,  and  also  all  other  metals  or  ores  containing 
metals,  (except  the  metal  or  ore  called  franklinite,  and  iron 
ores,  when  it  exists  separate  from  the  zinc,)  found  or  to  bo 
found,"  &c.  In  the  deed  from  the  Sussex  company  to  the 
New  Jersey  Zinc  Company,  purporting  to  be  for  the  same 
premises,  the  phraseology  of  the  description  is,  "all  the 
zinc  and  other  ores,  except  franklinite  and  iron  ores,  found 
or  to  be  found,"  &c.  The  distinction  in  the  effect,  as  well 
as  in  the  terms  of  the  two  deeds,  is  too  clear  to  admit  of 
controversy.  In  the  one,  the  exception  extends  only  to 
the  franklinite  and  iron  ores  when  it  exists  separate  from 
thezine;  in  the  other,  all  the  franklinite  and  iron  ores  are 
excepted.  By  the  one,  all  the  franklinite  and  iron  ores 
found  in  mechanical  combination  with  the  zinc  passes  to 
the  grantee  ;  in  the  other  they  do  not. 

After  the  description  of  the  premises  granted,  the  deed 
to  the  New  Jersey  Zinc  Company  contains  the  usual  clause, 
in  these  words:  "together  with  all  and  singular  the  tene- 
ments, hereditaments  and  appurtenances  thereunto  be- 
longing," &c.,  "and  also  all  the  estate,  right,  interest,  pro- 
perty, claim  and  demand  whatsoever,  as  well  at  law  as 
in  equity,  of  the  said  parties  of  the  first  part  of,  in  and 
to  the  above-described  premises,  and  every  part  and  par- 
cel thereof,  with  the  appurtenances."  It  is  urged  that 
-•this  language  includes  all  the  estate  and  interest  of  the 
.grantors  in  the  premises,  aod  operates  to  pass  to  the 


MAY  TERM,  1861.  331 

Zinc  Co.  v.  Franklinite  Co. 

grantees  all  the  franklin ite  and  iron  ores.  But  this  con- 
struction would  destroy  the  exception,  and  would  operate 
to  pass  the  absolute  fee  in  the  land  itself.  The  term  prem- 
ises^ in  common  parlance,  is  used  to  signify  the  land, 
with  its  appurtenances;  but  its  usual  and  appropriate 
meaning  in  conveyance  is,  "the  thing  demised  or  granted  by 
the  deed."  In  this  sense  the  terra  is  here  used.  This 
clause  was  not  intended  to  alter  or  enlarge  the  extent  of  the 
grant,  but  simply  to  convey  all  the  grantor's  interest  in  the 
thing  granted.  The  same  term  is  used  in  the  deed,  in  the 
habendum  clause,  with  obviously  the  same  meaning,  "  to  have 
and  to  hold  all  and  singular  the  above-mentioned  and  de- 
scribed premises,  with  the  appurtenances."  Its  meaning  in 
this  clause,  by  well-settled  rules  of  construction,  must  be 
limited  to  mean  the  thing  granted. 

Two  other  grounds  are  taken  in  regard  to  the  construction 
and  effect  of  this  deed  from  the  Sussex  company  to  the  New 
Jersey  Zinc  Company.  It  is  insisted — 

1.  That  the  deed  is  to  be  interpreted  by  the  aid  of  the  pre- 
vious agreement  between  the  parties,  iti  fulfillment  of  which 
the  deed  was  executed. 

2.  That  the  alteration   in   the   terms  of  the   grant  were 
fraudulently    made    in    violation    of    the   agreement    under 
which  it  was  executed,  and  that,  if  need   be,  the  court  will 
reform    the  deed  to  conform  to    the    intention  of  the    par- 
ties. 

In  regard  to  the  first  objection,  it  is  a  well -settled  and 
inflexible  rule  of  law,  that  except  in  cases  of  latent  ambig- 
uity, the  deed  must  be  construed  according  to  the  legal 
effect  and  meaning  of  its  terras  unaffected  by  extrinsic 
evidence.  The  terms  of  the  deed  in  question  are  clear. 
There  is  no  doubt  as  to  their  meaning,  and  no  room  for  con- 
struction apart  from  their  obvious  and  legal  import.  If  not 
in  accordance  with  the  true  meaning  and  intention  of  the  par- 
ties, the  proper  and  only  remedy  is  to  reform  tlie  instrument, 
not  to  subvert  its  legal  operation. 

Was    the   deed   fraudulently    made,  or,  by    mistake,  not 


332  CASES  IN  CHANCERY. 


Zinc  Co.  v.  Franklinite  Co. 


made  in  accordance  with  the  intent  and  agreement  of  the 
parties?  and  if  so,  may  it  be  reformed  to  accord  with  such 
intention?  Neither  of  these  grounds  is  suggested  in 
the  original  bill  filed  by  the  zinc  company  ;  on  the  con- 
trary, they  based  their  title  and  claim  to  relief  upon  the 
legal  effect  and  operation  of  the  deed  itself.  The  New 
Jersey  Franklinite  Company,  in  their  answer  to  the  bill, 
say,  "that  in  the  .conveyance  of  zinc  ores  on  Mine  Hill 
to  the  New  Jersey  Zinc  Company,  the  description  in  the 
older  deeds,  excepting  franklinite  or  iron  ore,  when  they 
exist  separate  and  apart  from  zinc  ore,  was  designedly 
changed,  after  full  discussion  in  presence  of  both  boards, 
by  omitting  the  words  '  when  they  exist  separate  and 
apart  from  the  zinc  ore;"'  because  the  reservation  qualified 
by  these  words  became  a  contradiction  and  a  nullity,  and 
because  the  franklinite  company  intended  to  reserve  to 
itself  all  the  franklinite  ore,  whether  connected  with  zinc 
or  not.  And  that  the  directors  of  the  New  Jersey  Zinc 
Company  were  present,  and  consented  to  and  approved  the 
striking  out  of  the  said  words  from  the  description  in  the 
original  deed  from  Fowler  and  wife,  for  the  reasons  afore- 
said. 

In  the  answer  of  the  zinc  company  to  the  supplemen- 
tal bill  filed  by  the  Boston  Franklinite  Company  these 
allegations  in  the  answer  of  the  original  defendants  are 
denied,  and  it  is  alleged  that  the  resuscitation  of  the  Sus- 
sex Zinc  and  Copper  Mining  and  Manufacturing  Com- 
pany, under  the  name  of  the  New  Jersey  Franklinite 
Company,  and  the  setting  up  by  them  of  a  claim  to  all 
the  franklinite  and  iron  ores  on  Mine  Hill  farm,  whether 
existing  separate  and  distinct  from  zinc  or  not,  was  a 
fraud  on  the  zinc  company;  and  if  the  deed  from  the 
Sussex  company  to  the  zinc  company,  of  the  eighth  of 
March,  1852,  does  not,  by  a  fair  construction  thereof,  (as 
the  defendants  believed,  and  still  believe  it  does,)  fully 
convey  all  the  ores  and  rights  which  were  conveyed  to  the 
Sussex  company  by  Fowler  and  wife  by  the  deed  of 


MAY  TERM,  1861.  333 

Zinc  Co.  v.  Franklinite  Co. 

March  10th,  1848,  the  same  ought  to  be  reformed  so  as  to 
correspond  to  the  true  intent  and  meaning  of  the  agreement 
between  the  parties. 

It  is  satisfactorily  shown  that  the  Sussex  Zinc  and  Cop- 
per Mining  and  Manufacturing  Company,  being  the  own- 
ers of  ores  and  mineral  rights  in  Mine  Hill  and  its  vicin- 
ity, by  grant  from  Fowler  and  the  New  Jersey  Exploring 
and  Mining  Company,  (the  title  of  which  company  has 
since  been  changed  to  the  New  Jersey  Zinc  Company) 
owning  ores  and  mineral  rights  at  Stirling  Hill,  and 
being  engaged  in  the  manufacture  of  zinc  at  Newark,  on  the 
fourth  of  September,  1851,  an  agreement  was  entered  into 
between  the  two  companies,  for  their  mutual  interest,  to 
unite  their  properties  and  to  carry  on  their  joint  business 
under  one  organization,  that  of  the  New  Jersey  Exploring 
and  Mining  Company.  The  Sussex  company  agreed  to 
convey  all  their  real  and  personal  estate  and  all  their  cap- 
ital stock  not  issued  to  individuals,  and  the  New  Jersey 
Exploring  and  Mining  Company  agreed  to  admit  the 
whole  stock  of  the  Sussex  company  to  the  same  dividend 
as  the  stock  of  the  New  Jersey  company ;  the  holders  of 
the  stock  of  each  company  to  be  entitled  equally  to  all 
dividends,  and  to  all  the  property,  real  and  personal,  of 
the  two  companies,  the  union  being  based  upon  the  prin- 
ciple of  entire  equality  between  the  stockholders  of  each 
company.  The  agreement  recites  that  it  was  contem- 
plated to  apply,  to  the  legislature  for  an  increase  of  the 
capital  stock  of  the  New  Jersey  Exploring  and  Mining 
Company,  and  in  case  of  such  increase  the  stock  of  the 
Sussex  company  was  to  be  surrendered,  and  the  stock  of 
the  New  Jersey  company  issued  in  lieu  thereof.  The 
real  and  personal  estate  of  the  Sussex  company  was  to 
be  transferred  to  the  New  Jersey  company,  thus  forming 
a  complete  union,  and  bringing  together,  and  uniting 
tinder  one  charter,  all  the  property,  rights  and  advantages 
owned  by  both  said  companies.  This  agreement  is  in 

VOL.  II.  X 


234  CASES  IN  CHANCERY. 

Zinc  Co.  T.  Franklinite  Co. 

writing,  and  is  formally  executed  under  the  seal  of  both 
companies. 

By  an  act  of  the  legislature,  approved  on  the  twelfth  of 
February,  1852,  the  name  of  the  New  Jersey  Exploring 
and  Mining  Company  was  changed  to  that  of  "The  New 
Jersey  Zinc  Company."  The  said  company  were  author- 
ized to  purchase  and  receive,  and  the  Sussex  Zinc  and 
Copper  Mining  and  Manufacturing  Company  were  au- 
thorized to  transfer  all  the  mines  and  mineral  rights,  or 
any  part  thereof,  then  owned  by  the  latter  company,  upon 
such  terms  as  the  companies  might  agree  upon ;  the  capital 
stock  of  the  company  was  authorized  to  be  increased,  and  its 
stock  issued  as  contemplated  by  the  agreement  between  the 
two  companies. 

In  further  execution  of  the  agreement  between  the  par- 
ties, the  Sussex  Zinc  and  Copper  Mining  and  Manufactur- 
ing Company  executed  to  the  New  Jersey  Zinc  Company 
the  two  deeds  of  the  8th  of  March,  1852,  already  referred 
to,  and  transferred  to  them  all  the  capital  stock  of  the 
company  not  standing  in  the  hands  of  private  stockhold- 
ers. Most  of  the  stock  in  private  hands  was  also  surren- 
dered, and  new  stock  issued.  A  few  of  the  shares,  how- 
ever, were  not  surrendered,  nor  was  the  charter  of  the 
company  or  its  corporate  rights  surrendered  or  trans- 
ferred. But  on  the  26th  of  January,  1853,  a  further  sup- 
plement to  the  act  was  passed,  by  which  the  name  of  the 
Sussex  Zinc  and  Copper  Mining  and  Manufacturing  Com- 
pany was  changed  to  that  of  the  New  Jersey  Franklinite 
Company,  and  its  capital  stock  increased  to  one  million 
two  hundred  thousand  dollars  ($1,200,000.)  Under  this 
charter  the  New  Jersey  Frankliuite  Company  claimed 
the  right  to  exercise  the  corporate  rights  and  franchises 
of  the  Sussex  Zinc  and  Copper  Mining  and  Manufactur- 
ing Company,  and  to  hold  title  to  the  ores  in  question. 
It  is  obvious  that  the  deed  for  the  land  was  not  in  accord- 
ance with  the  terms  of  the  agreement  between  the  com- 
panies; and  the  withholding  from  the  conveyance  a  part 


MAY  TERM,  1861.  335 

Zinc  Co.  v.  Franklinite  Co. 

of  the  property,  and  the  resuscitation  of  the  Sussex  com- 
pany, under  a  new  name,  is  charged  to  be  illegal  and  fraudu- 
lent. 

There  is  nothing  in  the  evidence  which  renders  the  charter 
of  the  New  Jersey  Franklinite  Company  inoperative,  or 
which  deprives  them  of  the  power  of  exercising  the  corpor- 
ate franchises,  or  enjoying  the  rights  of  property  which  were 
held  by  the  Sussex  Zinc  and  Copper  Mining  and  Manu- 
facturing Company  when  the  title  of  the  company  was 
altered. 

I  think  it  clear  that  the  agreement  between  the  Sussex 
Company  and  the  New  Jersey  Exploring  and  Mining  Com- 
pany involved  a  transfer  of  the  control  of  that  charter  to  the 
latter  company.  There  was,  however,  no  express  agreement 
for  the  sale  or  for  the  extinguishment  of  the  franchises  of  the 
company.  The  chartered  rights  and  privileges  of  the  com- 
pany, if  the  agreement  had  *been  carried  into  effect,  would 
have  been  owned  and  controlled  by  the  owners  of  the  stock. 
A  mere  agreement  to  transfer  the  property  and  stock  of  the 
company,  could  not  affect  its  legal  existence,  nor  could  the 
actual  transfer  of  all  the  real  and  personal  estate  of  the  cor- 
poration, including  the  stock  itself,  if  legal,  have  extinguished 
the  charter.  But  the  agreement  was  never  carried  into  effect. 
Neither  the  entire  stock  nor  all  the  property  of  the  corpora- 
tion was  transferred,  in  pursuance  of  the  agreement,  at  the 
time  the  name  of  the  company  was  changed.  The  bill 
admits  that  some  of  the  shares  were  still  outstanding,  and 
it  appears,  from  the  evidence,  that  some  of  the  directors 
delayed  transferring  their  stock  till  the  meeting  of  the 
legislature,  for  the  express  purpose  of  having  the  charter 
renewed.  The  title  to  the  ores  in  dispute  was  not  trans- 
ferred. The  act  of  February  12th,  1852,  the  passage  of 
which  was  contemplated  in  the  agreement  between  the 
companies,  and  which  was  designed  to  carry  the  agree- 
ment into  effect,  does  not  appear  to  contemplate  the  ne- 
cessary extinction  of  the  Sussex  company.  It  simply  au- 


336  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

thorizes  a  transfer  of  all  its  mineral  rights,  or  any  portion 
thereof. 

The  legislature,  by  the  passage  of  the  supplement  of  1853 
to  the  charter  of  the  Sussex  company,  changing  its  name  to 
the  New  Jersey  Franklinite  Company,  and  enlarging  its  cap- 
ital stock,  recognized  and  affirmed  the  continuance  of  the 
corporation  and  of  its  chartered  rights  and  privileges.  There 
is  nothing  that  renders  the  act  of  the  legislature  legally  inop- 
erative. The  legal  existence  of  the  franklinite  company  as  a 
corporation,  has  been  unquestioned  from  that  day  to  this,  and 
is  recognized  by  the  zinc  company  themselves.  The  legal 
existence  of  the  company,  and  their  right  of  acquiring,  hold- 
ing, and  transmitting  property,  in  accordance  with  the  terms 
of  the  charter  originally  granted  to  the  Sussex  company,  can- 
not now  be  doubted. 

In  the  original  bill  of  the  New  Jersey  Zinc  Company, 
it  is  alleged  that  the  act  of  the  legislature  of  1853,  chang- 
ing the  title  of  the  Sussex  Zinc  and  Copper  Mining  and 
Manufacturing  Company  to  the  New  Jersey  Franklinite 
Company,  was  passed  at  the  instance  and  request  of  the 
first-named  company.  In  their  answer  to  the  supplemen- 
tal bill,  it  is  alleged  that  this  admission  was  made  by  mis- 
take, and  that,  in  fact,  the  act  was  procured  by  persons 
having  no  interest  in  the  stock  for  sinister  purposes,  and 
that  resuscitating  the  company  under  a  new  name,  and 
setting  up,  by  them,  of  a  claim  to  the  franklinite  and  iron 
ores  on  Mine  Hill,  was  a  fraud  on  the  zinc  company. 
Conceding  the  truth  of  the  allegation — of  which  I  find  no 
competent  evidence — it  will  not  affect  the  result  of  the 
inquiry.  The  validity  of  the  charter  cannot  depend  upon 
the  motives  with  which  it  is  procured,  nor  upon  the  in- 
tegrity of  those  at  whose  instance  it  is  granted.  Nor  can 
the  mere  continuance  or  resuscitation  of  the  company 
under  a  new  name,  operate  as  a  fraud  upon  the  zinc  com- 
pany. It  is  not  the  resuscitation  of  the  charter,  or  the 
continuance  of  the  corporation,  that  operates  as  a  fraud 


MAY  TERM,  1861.  337 

Zinc  Co.  v.  Franklinite  Co. 

upon  the  rights  of  the  zinc  company,  but  the  claim  that 
is  set  up  to  the  ores  and  mining  rights  claimed  by  them, 
and  which  were  not  transferred  pursuant  to  the  agree- 
ment. 

The  whole  inquiry  terminates  in  this — was  the  change' 
in  the  terms  of  the  grant  made  by  the  Sussex  Zinc  and 
Copper  Mining  and  Manufacturing  Company  to  the  New 
Jersey  Zinc  Company,  by  the  omission  of  the  clause  con- 
tained in  the  deed  from  Fowler,  "  when  it  exists  separate 
from  the  zinc,"  fraudulently  made  ?  It  is  clear  that  the 
omission  is  not  in  accordance  with  the  terms  of  the  original 
agreement  between  the  parties  of  the  fourth  of  September, 
1851,  under  which  the  transfer  was  made.  The  complain- 
ants allege  that  it  was  done  fraudulently,  and  without  the 
assent  of  the  grantees.  The  defendants  insist  it  was  done, 
after  full  discussion,  with  the  knowledge  and  consent  of  the 
directors  of  both  companies. 

Fraud  is  never  presumed.  The  legal  presumption  is  in 
favor  of  the  good  faith  of  the  transaction.  The  convey- 
ance was  made  and  accepted  some  months  after  the  execu- 
tion of  the  agreement,  and  the  presumption  must  be  that 
the  terms  of  the  contract  were  changed  after  it  was  made, 
and  before  the  deed  was  executed.  The  burthen  of  proof 
is  upon  the  party  alleging  the  fraud.  The  mere  varia- 
tion between  the  terms  of  the  agreement  and  the  deed  is 
not  sufficient. 

The  complainants  prove,  by  C.  E.  Detmold,  that  the 
agreement  between  the  companies  was  carried  out  in  sub- 
stance ;  that  the  zinc  company  recognized  it  as  binding, 
and  carried  it  out  in  good  faith.  This  witness  was  presi- 
dent of  the  company  from  1853  to  1856.  His  first  con- 
nection with  the  company  was  in  November,  1852..  This 
was  after  the  execution  of  the  deed  to  the  zinc  company. 
He  has  no  knowledge  of  the  circumstances  which  attended 
the  execution  of  the  deed,  or  of  the  negotiations  which  led 
to  it. 

Richard   Jones  was  a  director   of  the   New  Jersey   Ex- 


338  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

ploring  and  Mining  Company  in  1851.  He  testifies  that 
he  was  present  at  the  meeting  of  the  directors  of  the  two 
companies  when  the  agreement  of  the  fourth  of  September, 
to  amalgamate  the  two  companies,  was  made ;  and  neither 
vat  that  time  nor  at  any  subsequent  time,  heard  any  discus- 
sion as  to  changing  the  phraseology  of  the  deed  to  be  given 
to  the  New  Jersey  Exploring  and  Mining  Company  from 
that  contained  in  the  deed  from  Fowler  to  the  Sussex 
Zinc  and  Copper  Mining  and  Manufacturing  Company. 
He  ceased  to  be  a  director  .of  the  zinc  company  in  May, 
1852 ;  thinks  he  was  not  a  director  when  that  company 
accepted  the  deed  from  the  Sussex  company,  and  ordered 
it  to  be  recorded,  and  does  not  know  when  that  was  done. 
The  deed,  though  dated  in  March,  1852,  was  neither  ac- 
knowledged nor  recorded  till  April,  1853.  All  this  evi- 
dence is  merely  negative.  It  does  not  prove  the  fraud,  nor 
disprove  the  allegation  of  the  defendants,  that  the  deed  was 
accepted  with  the  altered  phraseology  in  execution  of  the 
agreement. 

The  defendants  have  called  four  witnesses — Alexander 
C.  Farrington,  Samuel  Fowler,  James  L.  Curtis,  and  Silas 
M.  Stilwell — who  testify  substantially  that,  after  the  deed 
had  been  prepared,  a  meeting  of  the  directors  of  each 
company  was  called,  the  phraseology  of  the  deed  in  the 
description  of  the  premises,  which  corresponded  with  the 
description  in  the  deed  from  Fowler,  was  objected  to,  the 
subject  was  discussed  between  the  directors  of  the  two 
companies,  a  new  deed  was  ordered  to  be  drawn  ;  the  deed, 
as  amended,  was  read  to  the  board  of  directors  of  the 
New  Jersey  Zinc  Company,  the  alteration  in  its  phrase- 
ology made  the  subject  of  discussion,  and  was  accepted 
by  the  directors  with  knowledge  of  the  change,  and  of  the 
reasons  for  making  it.  Three  of  these  witnesses,  Far- 
rington, Fowler,  and  Curtis,  were  directors  of  both  com- 
panies, and  all  participated  in  the  discussions  at  the 
boards  touching  the  change  in  the  phraseology  of  the 
deed.  Stilwell  was  a  director  of  the  zinc  company,  was 


MAY  TERM,  1861.  339 

Zinc  Co.  v.  Franklinite  Co. 

present  when  the  language  of  the  deed  was  the  subject  of 
discussion  between  the  directors  of  the  two  companies ;  the 
deed,  as  amended,  was  read  over  by  him  to  the  directors 
of  the  zinc  company,  and  he  was  present  when  it  was 
accepted. 

The  witnesses  are  certainly  intelligent,  and  had  oppor- 
tunities of  knowing  the  facts.  All  the  exceptions  which 
have  been  taken  to  the  credibility  of  their  evidence  are  not 
sufficient  to  shake  or  materially  to  impair  the  force  of 
their  united  testimony.  It  cannot  be  denied  that  there  are 
circumstances  connected  with  this  transaction  which  ex- 
cite distrust,  and  which,  if  clearly  established,  might, 
upon  a  proper  case,  have  entitled  the  stockholders  of  the 
zinc  company  to  relief  as  against  the  act  of  their  own 
officers.  It  is  shown  that  the  deed  was  executed  to  the 
zinc  company  for  the  purpose  of  carrying  the  agreement 
between  the  two  companies  into  effect,  which  it  clearly 
does  not  do,  inasmuch  as  it  does  not  convey  all  the  pro- 
perty to  which  the  Sussex  company  were  entitled  under  their 
deed  from  Fowler.  No  evidence  of  the  alleged  agree- 
ment to  change  the  terms  of  the  conveyance  is  found 
upon  the  minutes  of  either  company;  and  evidence  is 
offered,  on  the  part  of  the  zinc  company,  tending  to 
show  that  the  individual  interests  of  the  directors  were, 
or  might  have  been,  hostile  to  the  interests  of  the  other 
stockholders,  and  that  the  change  in  the  terms  of  the  con- 
veyance were  in  a  high  degree  prejudicial  to  the  interests 
of  the  zinc  company.  Let  all  this  be  conceded,  the  facts 
are  nevertheless  established  by  the  evidence,  that  the 
deed,  as  executed,  was  accepted  by  the  zinc  company, 
upon  deliberation,  as  a  performance  of  the  agreement  on 
the  part  of  the  grantors.  The  alleged  reasons  for  the  ac- 
ceptance of  the  title,  viz.,  that  the  deed,  as  executed,  con- 
veyed all  the  title  that  Fowler  intended  to  convey,  or  all 
that  the  grantees  took  or  claimed  under  the  conveyance, 
or  that  its  terms  were  contradictory  and  absurd,  may  or 
may  not  have  been  justified  by  the  facts  of  the  case.  But 


340  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

they  suffice  to  show  that  the  change  of  terms  was  not  neces- 
sarily fraudulent,  and  may  have  been  made  with  an  honest 
purpose.  And  not  only  was  the  title  accepted  by  the  zinc 
company,  but  they  recognized  its  validity,  and  continued  to 
claim  title  under  it,  recognizing  the  adverse  rights  of  the 
franklinite  company  down  to  the  time  of  the  commencement 
of  this  suit. 

The  charge  of  fraud  in  the  alteration  of  the  deed  is  not 
sustained  upon  the  pleadings  and  evidence  in  the  cause. 
There  is  no  ground  upon  which  the  conveyance  in  question 
can  be  set  aside  as  fraudulent  or  reformed  on  the  ground  of 
mistake — neither  the  frame  nor  the  prayer  of  the  bill  is 
adapted  to  such  relief. 

This  conclusion  renders  it  unnecessary  to  consider  another 
ground,  urged  by  the  defendants'  counsel  upon  the  argument, 
viz.,  that  the  Boston  Franklinite  Company  is  a  purchaser, 
for  a  valuable  consideration  without  notice,  of  all  the  rights 
of  the  New  Jersey  Franklinite  Company,  and  cannot  be 
affected  by  a  secret  equity  in  favor  of  the  complainants  as 
against  the  latter  company. 

The  Boston  Franklinite  Company  have  acquired  all  the 
rights  of  the  New  Jersey  Franklinite  Company  to  the  prem- 
ises in  question  ;  their  title  rests  upon  the  legal  effect  and 
operation  of  the  deed  of  the  eighth  of  March,  eighteen  hun- 
dred and  fifty-two,  from  the  Sussex  company  to  the  New 
Jersey  Zinc  Company.  It  is  not  limited  to  the  franklinite 
and  iron  ores,  when  they  exist  separate  and  apart  from  the 
zinc,  but  includes  all  the  franklinite  and  iron  ores  embraced 
within  the  terms  and  legal  effect  of  the  exception  in  the 
deed. 

II.  Is  the  ore  in  question  a  zinc  ore,  which  passed  by 
the  terms  of  the  grant  to  the  zinc  company,  or  is  it  a 
franklinite  or  iron  ore  within  the  exception  in  the  deed, 
which  was  reserved  to  the  franklinite  company?'  The 
terms  of  the  grant,  it  will  be  remembered,  are  "all  the 
zinc  and  other  ores,  except  franklinite  and  iron  ores." 
The  incontrovertible  fact  is,  that  the  mass  consists  of  zinc 


MAY  TERM,  1861.  341 

Zinc  Co.  v.  Franklinite  Co. 

ore  and  franklinite  in  such  close  mechanical  combination 
that  neither  can  be  taken  from  the  mine  without  removing 
the  other.  Which  party,  by  the  terms  of  the  deed,  has 
title  ?  Each  party  claims  the  entire  mass — one  or  the  other 
must  take  it. 

Each  party  has  a  freehold  estate  in  the  thing  granted. 
There  may  be,  within  the  same  territorial  limits,  distinct 
estates  of  inheritance.  The  different  stories  of  the  same 
dwelling  may  be  held  in  fee  by  different  owners.  The 
title  to  the  surface  of  the  soil  may  be  in  one  person,  the 
title  to  the  mines,  or  different  strata  under  the  surface, 
may  be  in  others.  Neither  of  these  parties  owns  the  sur- 
face of  the  soil  beneath  which  the  ores  are  found.  The 
title  to  the  surface  is  in  Fowler,  to  the  zinc  in  the  com- 
plainants, to  the  franklinite  in  the  defendants.  The  deeds 
are  in  the  ordinary  form  of  a  conveyance  of  real  estate, 
and  purport  to  convey  a  title  to  land.  They  are  not  grants 
of  hand  specimens  or  isolated  minerals,  but  of  masses  of  ore 
in  situ. 

The  value  of  the  minerals  granted  consists  in  their 
adaptation  for  the  furnace  and  the  production  of  metals 
in  bulk.  The  terms  "  zinc  ores,"  "  franklinite  and  iron 
ores,"  are  used  as  a  description  of  the  land  granted  and 
reserved.  Whether  the  subject  of  the  grant  be  designated 
by  metes  and  bounds,  or  by  name,  or  by  description  of  its 
character,  is  immaterial.  A  deed  for  all  the  cedar  swamp 
on  Pole  branch,  in  the  township  of  A.,  would  be  as  effec- 
tual to  convey  the  land  as  though  it  were  described  by 
metes  and  bounds,  or  by  its  name  of  Whiteacre  j  and  the 
grantee  would  take  not  the  cedar  trees  growing  upon  the 
tract,  but  the  entire  tract  falling  within  the  description, 
though  trees  of  other  varieties  might  be  found  within  its 
limits.  A  deed  for  a  mine,  with  mining  privileges,  is  not 
a  mere  license  to  take  away  ore,  or  the  grant  of  an  easement 
or  other  incorporeal  hereditament,  but  of  a  part  of  the  free- 
hold. Caldwell  v.  Fulton,  31  Perm.  St.  R.  475  ;  Grubb  v. 
Bayard,  2  Wallace,  Jr.,  81. 


342  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

The  grantee  takes  not  an  incorporeal  hereditament,  but  an 
estate  in  the  land  itself,  for  which  an  ejectment  will  lie. 
Comyn  v.  Kynto,  Cro.  Jac.  150;  Whittingham  v.  Andrews, 
Salk.  255 ;  Adams  on  Eject.  20 ;  Turner  v.  Reynolds,  1 1 
Harris  199.  And  which  is  subject  to  dower.  Stoughton  v. 
Leigh,  1  Taunt.  402  ;  Park  on  Dower  116,  120  ;  1  Crabb  on 
Real  Estate  98  ;  1  Washburne  on  Real  Prop.  166. 

The  deeds  must  be  construed  as  any  other  deeds  for 
land,  subject  to  the  qualification  necessarily  imposed  by 
the  limited  character  of  the  thing  granted,  and  a  due  re- 
gard for  the  rights  of  others  having  interests  in  the  same 
land.  Thus,  though  the  grant  include  all  the  ores,  suffi- 
cient support  must  be  left  for  the  surface,  the  title  to 
which  is  in  another  party.  The  owner  of  the  lower  story 
of  a  dwelling  cannot  deprive  the  upper  stories,  which  are 
owned  by  others,  of  their  support.  Harris  v.  Ryding,  5 
Mees.  &  W.  60;  Humphries  v.  Brogden,  12  Queen's  B.  739  ; 
Jeffries  v.  Williams,  5  Excheq.  792 ;  Smart  v.  Norton,  5  Ellis 
&  B.  30. 

In  construing  the  deeds,  reference  must  be  had,  in 
order  to  ascertain  the  intention  of  the  parties,  to  the  ex- 
isting state  of  knowledge  of  the  subject  matter,  the  re- 
ceived meaning  of  the  terms  employed,  and  the  usages 
prevailing  at  the  date  of  the  conveyance,  rather  than  to 
the  time  of  the  alleged  injury.  Thus,  when  doubts  arise 
in  regard  to  the  true  meaning  or  application  of  a  terra 
used  in  the  deed,  the  meaning  of  which  may  have  changed, 
in  order  to  ascertain  the  true  import  of  the  term  used  by 
the  parties,  and  the  application  of  it  to  the  proper  subject 
matter,  recourse  must  be  had  to  its  popular  signification 
at  the  date  of  the  deed.  So  where  the  construction  or  effect 
of  the  deed  depends  upon  local  usage,  it  must  be  referred 
to  the  usage  existing  at  the  date  of  the  deed.  Harris  v. 
Ryding,  5  Mees.  &  W.  69,  per  Parke,  B.;  Smart  v.  Morton, 
5  Queen's  B.  30. 

If  this  view  of  the  nature  of  the  title  of  the  respective 
parties  be  correct,  it  follows  that  the  controversy  does  not 


MAY  TERM,  1861.  343 

Zinc  Co.  r.  Franklinite  Co. 

regard  the  ownership  of  the  ores  merely  when  mined  or 
detached  from  the  soil,  but  involves  the  title  to  the  free- 
hold or  inheritance.  It  is  upon  this  ground  that  the  in- 
junction ia  allowed.  1  Story's  Eq.  Jur.,  §  929;  Thomas  v. 
Oakley,  18  Vesey  184;  Livingston  v.  Livingston,  6  Johns.  C. 
E.  497;  Merced  Mining  Co.  v.  Fremont,  7  Cal.  318. 

The  ownership  of  the  property  is  in  no  sense  joint.  It 
is  not  in  the  same,  but  in  distinct  things.  No  partition  of 
their  interest  could  be  made.  Each  clajms  title  to  the 
whole  mass  of  the  ore  in  the  same  vein  or  stratum.  One 
or  the  other  must  be  entitled  to  it.  The  deeds  were  not 
intended  to  convey,  and  do  not  convey,  distinct  interests  in 
the  same  lode,  vein,  or  stratum.  Some  test  must  be  applied 
by  which  the  title  to  each  vein,  or  distinct  portion  of  a  vein, 
can  be  ascertained  to  belong  to  one  or  the  other  of  the  par- 
ties. 

It  is  satisfactorily  shown  by  the  evidence,  that  at  the 
dates  of  the  deeds  in  which  this  controversy  has  its  origin, 
and  as  late  as  the  year  J853,  the  masses  or  veins  of  ore 
upon  Mine  Hill  were  regarded  and  known  as  franklinite. 
The  ore  was  so  called  by  the  proprietors  of  the  mines  and 
by  the  miners  themselves.  It  was  so  described  in  scientific 
treatises  and  in  geological  reports.  It  was  so  classified 
and  arranged  in  mineralogical  cabinets  and  exhibitions. 
The  mass  was  known  not  to  consist  entirely  of  that  min- 
eral. Pure  specimens  or  crystals  of  franklinite  were  known 
to  "exist  only  in  small  and  unimportant  bodies,  having  no 
value  for  practical  purposes.  In  the  general  mass  of  the 
ore,  there  was  mingled  with  the  franklinite,  ores  of  zinc 
and  other  minerals  in  various  proportions.  But,  so  far  as 
was  known,  franklinite  constituted  the  predominating 
element  which  gave  character  and  title  to  the  mass.  Zinc 
ore  had  been  discovered  and  used  in  at  least  one  locality, 
but  no  well-defined  vein  of  zinc  ore  had  been  developed. 
Upon  Stirling  Hill,  in  the  immediate  vicinity,  distinct, 
well-defined  -veins  of  zinc  and  franklinite  had  been  de- 
veloped, and  the  zinc  vein  extensively  worked.  Here,  as 


344  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

on  Mine  Hill,  the  ores  were  found,  to  some  extent,  in 
mechanjcal  combination.  Both  veins  contained  more  or  less 
of  each  mineral.  In  the  zinc  vein,  the  red  oxide  of  zinc 
predominated;  it  formed  the  enveloping  mass  which  gave 
name  and  character  to  the  ore,  and,  though  grains  of  frank- 
linite  were  found  extensively  disseminated  thoughout  the 
mass,  it  was  universally  known  and  designated  as  zinc  ore. 
On  Stirling  Hill,  the  separate  lodes,  though  in  immediate 
contact,  were  generally  well  defined  and  distinguished  by 
clear  lines  of  demarcation.  From  the  general  geological 
character  of  the  vicinity,  it  was  anticipated  that,  in  the 
progress  of  investigation,  a  similar  distinct  and  well-de- 
fined vein  of  zinc  ore  would  be  developed  upon  Mine 
Hill.  Upon  this  state  of  facts,  within  the  knowledge  of 
the  parties,  there  seems  to  be  no  room  for  rational  doubt 
as  to  what  the  parties  intended  by  the  terms  used  in  the 
deed  as  descriptive  of  the  subject  matter  of  the  convey- 
ance. By  "zinc  ores,"  was  meant  those  veins  or  lodes  in 
which  the  ore  of  zinc  was  the  predominating  ore,  and  by 
"  franklinite,"  not  the  pure  mineral  of  that  name,  which 
was  never  found  except  in  small  and  detached  specimens, 
but  those  veins  or  lodes  in  which  franklinite  predominated, 
and  which  was  known  and  designated  as  franklinite  ore. 
The  instrument  must  be  construed  according  to  the  mind 
and  intent  of  the  »parties  at  the  time  it  was  executed.  It 
is  no  valid  objection  to  this  construction,  that  frauklinite 
is  a  mineral,  and  not  a  metal,  and  that,  speaking  with 
scientific  precision,  there  is  no  such  thing  as  a  frankliuite 
ore,  in  the  sense  in  which  we  speak  of  a  zinc  or  iron  ore. 
The  question  is  not,  what  is  the  scientific  import  of  the 
terms,  but  in  what  sense  the  parties  to  the  contract  under- 
stood and  used  them.  The  evidence  abundantly  shows 
that  the  term  franklinite  was  in  constant  and  familiar  use 
to  designate  the  ore  or  mass  in  which  that  mineral  predomi- 
nated. 

The  same  view  of  the  import  of  the  terms  seems  to  have 
prevailed  in  the  minds  of  the  parties  down  to  the  time  of 


MAY  TERM,  1861.  345 


Zinc  Co.  v.  Franklinite  Co. 


tire  commencement  of  this  suit.  The  complainants,  in 
their  original  bill,  claim  that  the  defendants  own  none  of 
the  ores  except  the  franklinite  when  it  exists  separate 
from  the  zinc,  and  allege  that  the  defendants  were  raining 
and  using  the  ore  in  controversy  under  the  pretence  that 
the  opening,  or  mine,  contains  nothing,  or  nearly  nothing, 
but  frankliuite,  whereas  the  complainants  allege  that  zinc 
ore  is  tire  predominating  ore  in  said  opening,  or  at  least 
constitutes  a  very  large  proportion  of  the  ore  therein. 
The  franklinite  company,  in  their  answer,  allege  that  in 
all  the  veins  yet  discovered  on  Mine  Hill,  franklinite  is 
the  predominating  metal;  that  the  ore  in  excess  gives 
name  and  character  to  the  vein.  And  they  further  allege 
that  in  the  working  of  the  ore  taken  by  them  from  the  new 
opening,  not  more  than  fifteen  per  cent,  of  zinc  has  been 
extracted. 

The  evidence  shows  that  the  vein  or  lode  in  which  the 
mine  called  the  new  opening  is  situated,  at  the  date  of 
the  deeds  and  down  to  the  commencement  of  this  con- 
troversy, was  known  and  designated  as  a  franklinite  vein, 
and  that  in  the  great  mass  of  mineral  substances  in  the 
vein,  as  far  as  developed,  franklinite  predominates.  The 
evidence  further  shows  that,  taking  the  entire  aggregate  of 
the  ores  which  have  been  taken  from  the  mine  by  both  com- 
panies, there  has  been  a  very  decided  excess  of  franklinite 
over  the  zinc  ore  in  the  mass. 

The  complainants  insist,  nevertheless,  that  the  title  to 
the  mine  is  in  them,  because  the  entire  mass  of  ore  there- 
in, including  as  well  the  franklinite  as  the  zinc,  existing 
as  it  does  in  intimate  mechanical  combination,  constitutes 
a  zinc  ore  within  the  letter  of  the  grant.  Upon  this  and 
kindred  points  involved  in  the  inquiry,  a  great  amount  of 
valuable  testimony  has  been  given  by  witnesses  distin- 
guished for  their  scientific  attainments  and  practical  skill 
as  mineralogists.  The  court  acknowledges  its  obligation 
for  the  light  thus  afforded,  which  has  served  to  render 
some  of  the  points  of  inquiry  entirely  clear.  The  evi- 


346  CASES  IN  CHANCERY 

Zinc  Co.  v.  Franklinite  Co. 

dence,  indeed,  has  satisfactorily  settled  most  of  the  inci- 
dental questions  of  fact  which  have  arisen  in  the  cause; 
and  although  there  are  conflicts  in  the  testimony  upon 
matters  of  opinion,  and  still  more  upon  matters  of  infer- 
ence, yet,  upon  a  careful  review  of  the  evidence,  and  an 
examination  of  the  very  elaborate  arguments  of  counsel, 
I  do  not  find  any  essential  difference  in  the  result  of  the 
various  analyses  nor  upon  the  material  questions  of  fact 
bearing  upon  the  result  of  the  controversy.  I  shall  there- 
fore content  myself  by  stating,  in  the  progress  of  the 
opinion,  what  I  understand  to  be  the  clear  result  of  the 
testimony,  without  referring  to  it  in  detail  or  naming  the  wit- 
nesses, and  without  adverting  to  occasional  conflicts  which  do 
not  affect  the  general  result. 

I  think  the  evidence  does  show,  as  claimed  by  the  com- 
plainants, that  the  bulk  of  the  ore  in  question,  (I  refer 
more  especially  to  what  is  called  by  the  witnesses  the  gray 
ore,}  is  properly  called  zinc  ore.  It  is,  in  other  words,  a 
mineral  body  containing  so  much  of  the  metal  of  zinc  as 
to  be  worth  smelting  It  is  shown  that  it  has  been  profit- 
ably worked  for  the  zinc  which  is  extracted  from  it,  and 
hence,  in  popular  understanding,  as  well  as  in  strict  tech- 
nical meaning,  it  would  be  called  an  ore  of  zinc.  And  if 
the  deed  to  the  zinc  company  contained  a  simple  grant 
of  all  the  zinc  ore,  without  exception,  found  or  to  be 
found  in  the  tract,  the  argument  in  favor  of  their  title  to 
the  entire  mass  would  certainly  be  very  strong,  not  only 
because  the  ore  would  fall  directly  within  the  description 
of  the  grant,  but  because,  in  case  of  any  doubt,  the  grant 
must  be  taken  most  strongly  against  the  grantor.  But  the 
grant  is  of  all  the  zinc  and  other  ores,  except  franklinite 
and  iron  ores.  The  franklinite  is  expressly  excepted  from 
the  grant,  and  to  adopt  the  construction  contended  for 
would  be  to  nullify  the  exception,  or  to  restore  the  clause 
contained  in  the  deed  from  Fowler  to  the  Sussex  com- 
pany, "  except  the  franklinite  or  iron  ores,  when  it  exists 
separate  from  the  zinc."  Either  construction  is  inadmis- 


MAY  TERM,  1861.  347 

Zinc  Co.  v.  Franklinite  Co. 

Bible,  because  it  would  be  in  conflict  with  the  terms  of  the 
grant.  If  the  grant  had  been  of  all  the  zinc  ore  except 
the  red  oxide  of  zinc,  the  red  oxide  of  zinc  would  not 
have  passed  by  the  grant  simply  because  it  is  expressly 
excepted.  It  would  add  no  strength  to  the  claim  of  the 
grantee  to  demonstrate  that  the  mass  in  which  the  red  oxide 
was  found  constitutes  a  good  zinc  ore,  because  the  grantors 
could  never  have  intended,  by  the  term  zinc  ore,  to  have 
included  the  red  oxide,  which,  by  the  express  terms  of  the 
grant,  is  excepted. 

It  is  further  insisted,  on  the  part  of  the  zinc  company, 
that  whether  a  particular  ore  shall  be  called  zinc  ore  on 
the  one  hand,  or  franklinite  or  iron  ore  on  the  other,  does 
not  depend  upon  the  preponderance  of  zinc  or  oxide  of 
zinc  upon  one  hand,  or  of  franklinite  or  oxide  of  iron 
upon  the  other,  but  on  the  relative  value  of  the  respective 
products,  after  taking  into  account  the  expense  of  extracting 
the  same. 

It  was  suggested,  upon  the  argument,  that  this  ground 
of  defence  was  inadmissible,  as  it  was  an  entire  departure 
from  the  ground  of  claim  set  up  by  the  zinc  company  in 
the  original  bill,  and  upon  which  an  issue  was  made  by 
the  answer  to  that  bill.  But  a  bill  iu  the  nature  of  a  sup- 
plemental bill  is  not  an  addition  to  the  original  bill,  but 
another  original  bill,  to  which  a  new  defence  may  be  made. 
Story's  Eq.  PL,  §  353 ;  Mitjord's  PL  72 ;  3  DanieWs  Chan. 
Pi:  1686. 

The  complainant  in  the  original  bill,  in  his  answer  to 
the  .supplemental  bill,  is  not  controlled  by  the  averments 
of  the  bill,  nor  limited  to  the  same  grounds  in  support  of 
his  title. 

The  evidence  offered  upon  this  point  suffices  to  show 
that,  either  in  scientific  or  metallurgical  nomenclature,  an 
ore  containing  different  metals  may  be,  and  ordinarily  is 
termed  an  ore  of  that  metal  for  which  it  is  only  or  pri- 
marily worked  ;  and  that  the  ore  in  question,  being  more 
valuable  as  a  zinc  than  as  an  iron  ore,  and  being  worked 


348  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

for  its  zinc,  is  properly  a  zinc  ore.  1  do  not  understand 
it  to  be  insisted,  and  it  certainly  is  not  established  by  the 
evidence,  that  ah  6re  is  properly  called  an  ore  of  that 
metal  only  for  which  it  may  be  most  profitably  worked, 
or  that  there  is  any  inflexible  rule  adopting  the  value  of 
the  product  as  a  test  of  the  name  of  the  ore.  The  extent 
of  the  evidence,  I  think,  is  that  the  ore  would  more  usu- 
ally and  more  properly  be  styled  an  ore  of  that  metal  for 
which  it  is  primarily  and  most  profitably  worked.  Assum- 
ing it  to  be  satisfactorily  established  that  this  ore  may  be 
most  profitably  worked  for  its  zinc,  and  that  it  may,  by 
that  principle  of  classification,  be  termed  a  zinc  ore,  the 
important  question  still  remains,  was  that  the  mode  of 
classification  adopted  by  the  parties  to  the  deed  in  ques- 
tion? Did  they  so  understand  it?  Was  that  the  meaning 
they  attached  to  it?  Upon  this  point,  as  has  been  already 
said,  the  evidence  is  decisive.  No  such  mode  of  classifi- 
cation, as  the  relative  value  of  the  respective  metals  was 
(so  fa'r  as  appears  by  the  evidence)  ever  adopted  by  or 
known  to  the  parties  at  the  date  of  the  deed,  but  on  the 
contrary,  the  ore  was  known  and  designated  by  the  pre- 
ponderance of  the  metal  contained  in  the  vein,  without 
regard  to  its  value;  and  that  by  those  who  owned  it,  who 
dealt  in  it,  who  used  it,  and  who  classified  it,  the  ore  of 
the  vein  in  question  was  known  and  designated  as  frank- 
linite.  It  is  immaterial,  therefore,  by  what  other  or  dif- 
ferent name  the  ore  may  be  called.  It  is  obvious,  more- 
over, that  the  system  of  classification  of  ores,  by  the  rel- 
ative value  of  the  metals  contained  in  them,  however 
proper  it  may  be  in  the  nomenclature  of  mineralogists  or 
metallurgists,  can  never  be  adopted  to  settle  the  construc- 
tion of  a  deed  or  the  title  to  the  ore.  The  name  would  be 
liable  to  constant  fluctuation,  depending  upon  the  fluctua- 
tion in  the  market  price  of  the  respective  metals,  the 
locality  in  which  the  ore  is  found,  and  the  facilities  for 
working  it.  It  would  convert  the  franklinite  itself  into 
an  ore  of  zinc.  The  title  to  the  ore  certainly  could  not 


MAY  TERM,  1861.  349 

Zinc  Co.  v.  Franklinite  Co. 

fluctuate  with  the  change  of  name — that  was  fixed  by  the 
delivery  of  the  deed. 

Another  ground  relied  upon  by  the  zinc  company  is 
that  the  vein  of  ore  in  which  the  new  opening  is  made  is 
found,  upon  careful  examination,  to  consist  of  two  dis- 
tinct layers  or  strata.  That  one  of  these  strata  contains 
so  large  an  admixture  of  zinc  ore  in  some  of  its  shapes, 
either  as  red  oxide,  silicate  or  carbonate  of  zinc,  as  to 
constitute  the  preponderance  of  the  mass,  and  to  form 
with  the  franklinite  a  good  zinc  ore.  This  claim  applies 
to  what  is  usually  termed  the  gray  ore,  as  distinguished 
from  the  black  ore  taken  from  the  new  opening,  and  is  the 
ore  which  has  mainly  been  mined  and  taken  away  by  the 
zinc  company. 

It  is  admitted  that  this  ore  is  taken  from  a  part  of  the 
great  west  vein,  which  is  known  as  franklinite,  and  in  the 
aggregate  ore  of  which,  including  as  well  the  black  as  the 
gray  ore,  the  frankliuite  greatly  predominates.  It  is  claimed 
that  the  gray  ore,  containing  a  large  admixture  of  the  red 
oxide  of  zinc,  constitutes  a  distinct  and  clearly  defined 
stratum  or  layer  in  that  vein  to  which  the  zinc  company 
have  title.  The  existence  of  this  distinct  layer  or  stratum 
is  denied.  It  is  admitted  that  certain  portions  of  the  vein, 
contain  more  zinc  than  others,  and  that  the  ores  vary  in 
color;  but  it  is  insisted  by  the  franklinite  company  that 
these  portions  are  not  found  in  distinct  layers  or  strata,  or  in. 
segregated  masses  or  deposits,  but  are  scattered  irregularly 
and  indiscriminately  through  the  vein.  Upon  this  point 
thero  is  much  conflict  in  the  evidence.  The  fact  of  the  ex- 
istence of  such  distinct  stratum  is  not  established.  The 
burthen  of  proof  upon  this  point  is  upon  the  zinc  company. 
The  ore  is  taken  from  part  of  a  franklinite  vein,  and  from  a 
mine  in  which  the  great  mass  of  the  ore  is  franklinite.  If 
this  particular  portion  of  the  vein  belongs  to  the  zinc  com- 
pany, the  existence  of  the  stratum  or  deposit  to  which  they 
claim  title  should  be  clearly  shown. 

VOL.  II.  Y 


350  CASES  IN  CHANCERY. 

Zinc  Co.  v.  Franklinite  Co. 

But  admitting  the  existence  of  a  distinct  and  well-defined 
stratum  within  the  mine  in  which  the  ore  in  question  is 
found,  the  evidence  does  not  show  an  excess  of  zinc  over  the 
frankliuite.  On  the  contrary,  the  average  of  the  analyses 
show  a  clear  preponderance  of  franklinite  over  the  zinc  in 
the  mass  of  the  ore  in  question. 

The  zinc  company  have  not  shown  a  title  to  the  mine 
called  the  new  opening,  nor  a  right  to  the  ores  taken  there- 
from, either  by  themselves  or  by  the  franklinite  company. 
The  injunction  against  the  franklinite  company  must  be  dis- 
solved, and  the  bill  dismissed,  with  costs. 

In  the  case  of  the  Boston  Franklinite  Company  against 
the  zinc  company,  a  reference  will  be  ordered  to  take  an  ac- 
count, and  the  injunction  against  the  zinc  company  con- 
tinued till  the  final  hearing.  This  direction  is  given  upon 
the  assumption  that  the  dismissal  of  the  original  bill  does 
not  finally  dispose  of  the  case  upon  the  bill,  in  the  nature 
of  a  supplemental  bill.  Such  appears  to  be  the  rule.  No 
allusion  was  made  to  the  point  upon  the  argument,  and 
counsel  will  be  heard  upon  it,  if  desired,  before  the  signing 
of  the  decree. 

I  have  entertained  strong  doubts  touching  the  propriety 
of  holding  either  of  these  injunctions,  and  it  is  with  hesita- 
tion that  the  cases  are  now  decided  upon  their  merits.  The 
controversy  involves  a  question  of  title  to  real  estate.  A 
court  of  equity  will  rarely  interpose  by  injunction  to  restrain 
the  working  of  mines,  until  the  right  is  established  at  law. 
Eden  on  Injune.  112,  (Waterman's  ed.,)  194. 

And  where  an  injunction  is  granted,  the  course  most  con- 
sistent with  the  practice  and  inclination  of  the  court  is  to 
have  the  right  tried  at  law.  Grey  v.  Duke  of  Northumber- 
land, 17  Vesey  281. 

But  the  case  has  been  peculiarly  situated.  The  injunc- 
tion in  favor  of  the  zinc  company  against  the  franklinite 
company,  who  were  originally  in  possession,  has  been  of 
long  standing.  No  motion  has  been  made  to  dissolve  it, 
nor  has  either  party  asked  a  trial  of  the  title  at  law  or 


MAY  TERM,  1861.  351 

McMurtry  v.  Giveana. 

questioned  the  propriety  of  the  injunctions  upon  this  ground. 
Both  parties  have  sought  a  decision,  by  this  court,  of  the 
question  upon  the  merits.  Evidence  has  been  taken  affect- 
ing the  entire  question  at  issue,  and  the  cause  argued  exclu- 
sively upon  the  question  of  title.  The  cause  was  heard  with 
the  understanding  that  a  decision  of  the  question  of  right 
was  desired,  to  the  end  that  the  important  questions  involved 
should  be  speedily  and  finally  decided  by  the  court  in  the 
last  resort.  Under  these  circumstances  the  question  is  de- 
cided, aside  from  all  questions  of  a  technical  character,  ex- 
clusively upon  its  merits,  believing  that  the  ends  of  justice 
will  thereby  be  most  effectually  promoted. 

REVERSED,  2  McCar.  418. 

CITED  in  Carlisle  v.  Cooper,  6  C.  E.  Or.  584. 


MCMURTRY  VS.   GiVEANS. 

To  legalize  the  taking  of  seven  per  cent,  interest  oo  contracts  by  virtue 
of  the  supplements  to  the  act  concerning  usury,  the  contract  must  be  actu- 
ally made  within  one  of  the  districts  specified  in  the  act. 


Whitehead,  for  complainant. 
Williamson)  for  defendant. 

THE  CHANCELLOR.  The  bill  is  filed  to  foreclose  a  mort- 
gage given,  on  the  25th  of  February,  1856,  by  William  D. 
Giveans  and  Samuel  Giveans  to  William  McMurtry,  to  se- 
cure the  payment  of  §3000,  with  interest  at  the  rate  of  seven 
per  cent,  per  annum.  The  answer  of  William  D.  Giveans, 
the  principal  debtor,  (the  other  obligor  having  joined  in  the 
bond  and  mortgage  as  a  surety,)  sets  up  usury  as  a  defence. 

The  question  at  issue  involves  the  true  construction  of 
the  supplement  to  the  act  against  usury,  approved  March 
2d,  1854,  (Nix.  Dig.  373,  §  8,)  and  of  the  further  supple- 


352  CASES  IN  CHANCERY. 

McMurtry  T.  Giveans. 

ment  to  the  said  act,  approved  April  6th,  1855.  Nix.  Dig. 
374,  §  10;  Pamph.  Laws  752. 

The  act  of  March  2d,  1854,  authorizes  interest  to  be  taken 
at  the  rate  of  seven  per  cent,  upon  all  contracts  there- 
after made  in  either  of  the  counties  of  Hudson  or  of  Essex, 
or  in  the  city  of  Paterson ;  provided,  that  each  one  of  the 
parties  to  such  contract  shall,  at  the  making  thereof,  reside 
either  within  the  limits  of  said  counties  or  city,  or  out  of  the 
state. 

The  act  of  1855,  after  reciting  that  doubts  had  arisen  in 
relation  to  the  proper  construction  of  the  act  of  1854,  de- 
clares that  the  said  act  shall  be  taken  and  construed  to  legal- 
ize all  contracts  made  since  the  said  act  went  into  operation 
for  the  loan  or  forbearance  of  money  upon  interest  at  the 
rate  of  seven  per  cent.;  provided  the  contracting  parties,  or 
either  of  them,  was  or  shall  be,  at  the  time  of  making 
the  contract,  resident  of  or  located  in  either  the  counties 
of  Hudson  or  Essex  or  the  city  of  Paterson  or  out  of  this 
state. 

The  design  of  the  last  statute,  as  appears  by  the  preamble, 
was  to  remove  doubts  which  had  arisen  in  relation  to  the 
proper  construction  of  the  former  act.  What  those  doubts 
were  is  not  expressly  stated ;  but  from  the  enactment  of  the 
statute,  as  well  as  from  its  preamble,  the  obvious  presump- 
tion is  that  the  doubts  existed  in  relation  to  the  proviso  of 
the  statute,  which  requires  each  one  of  the  contracting  parties 
to  reside  within  the  district  specified  or  out  of  the  state,  and 
that  the  design  of  the  statute  was  simply  to  remove  those 
doubts  by  altering  the  language  of  the  proviso  and  rendering 
it  less  ambiguous. 

Limited  to  this  object,  the  simple  effect  of  the  act  of 
1855  was  to  legalize  all  contracts  made  or  to  be  made 
within  the  districts  specified,  provided  that  both  or  either 
of  the  contracting  parties  resided  within  either  of  those 
districts  or  out  of  the  state.  But  the  language  of  the  act 
is  much  more  comprehensive.  It  contains  no  reference 
whatever  to  the  place  of  making  the  contracts.  In  terms. 


MAY  TERM,  1861.  353 

McMurtry  v.  Gireans. 

therefore,  the  act  not  only  comprehends  all  contracts  made 
within  the  counties  of  Hudson  or  Essex,  or  within  the  city 
of  Paterson,  but  all  contracts,  wherever  made,  provided  both 
or  either  of  the  contracting  parties  resided  within  the  limits 
specified,  or  out  of  the  state.  And  such,  it  is  insisted,  must 
be  the  construction  of  the  statute. 

The  effect  of  this  construction  would  be  to  strike  from 
the  act  of  1854  the  entire  clause  in  relation  to  the  place 
of  the  contract,  and  confine  its  operation  to  the  residence 
of  the  contracting  parties.  It  would  legalize  contracts  for 
interest  at  seven  per  cent,  in  every  part  of  the  state,  pro- 
vided either  of  the  contracting  parties  lived  out  of  the 
state,  or  within  certain  specified  limits  within  the  state. 
This  would,  indeed,  place  the  law  regulating  the  rate  of 
interest  upon  a  most  unsatisfactory  basis.  The  right  to 
charge  seven  per  cent,  interest  would  not  be  confined  to 
auy  locality.  It  would  not  be  regulated  by  the  place  of 
the  contract,  but  solely  by  the  residence  of  the  contracting 
parties.  Such  result  never  could  have  been  within  the 
contemplation  of  the  legislature.  The  design  of  the  legis- 
lature, in  both  acts,  was  to  legalize  contracts  for  interest 
at  seven  per  cent.,  for  the  benefit  (real  or  supposed)  of  the 
residents  of  the  localities  or  districts  specified  in  the  act. 
That  such  was  the  design  of  the  legislature  is  abundantly 
manifested  by  reference  to  contemporaneous  legislation. 
Thus  the  county  of  Union  having  been  set  off  from  the 
county  of  Essex  in  1857,  doubts  arose  whether  the  opera- 
tion of  the  act  of  1854,  which  was  limited  in  terms  to  the 
counties  of  Hudson  and  Essex,  would  extend  to  the 
county  of  Union,  although  that  territory  was  included 
within  the  limits  of  Essex  at  the  passage  of  the  act.  To 
remove  those  doubts,  by  an  act  approved  February  18th, 
1858,  (Pamph.  Laws  89,)  it  was  enacted  that  all  contracts 
made  in  the  county  of  Union,  after  the  creation  of  that 
county  by  virtue  of  the  act  of  1854,  for  the  loan  or  for- 
bearance of  money,  with  interest  at  the  rate  of  seven  per 
cent.,  should  be  valid  and  legal  in  the  same  manner  and 


354  CASES  IN  CHANCERY. 

McMurtry  v.  Giveans. 

to  the  same  extent  as  authorized  by  the  act  of  1854  iu  the 
county  of  Essex.  This  act  has  clear  reference  to  the 
locality  of  the  contract,  as  well  as  to  the  residence  of  the 
contracting  parties.  Iu  like  manner,  the  act  of  February 
6th,  1858,  (Pamph.  Laws  34,)  the  act  of  March  18th,  1858, 
(Pamph.  Laws  475,)  and  the  act  of  1860,  (Pamph.  Laws 
111,)  which  extend  the  operation  of  the  law  authorizing 
interest  to  be  taken  at  the  rate  of  seven  per  cent,  to  the 
county  of  Bergen,  to  a  part  of  the  township  of  Woodbridge, 
and  to  the  township  of  Acquackanonck,  all  require  that  the 
contract  should  be  made  within  the  limits  of  those  dis- 
tricts respectively.  In  all  the  legislation  on  this  subject,  it 
is  apparent  that  the  legislature  designed  that  the  place  of 
the  contract  should  he  the  test  of  the  legality  of  the  interest, 
in  accordance  with  the  familiar  principle  that  the  validity 
and  construction  of  the  contract  are  to  be  determined  by  the 
lex  foci  contractus. 

This  interpretation  of  the  act  is  in  accordance  not  only 
with  the  design  of  the  legislature,  as  manifested  by  con- 
temporaneous legislation,  but  is  sanctioned  by  well-settled 
principles  of  construction.  In  the  construction  of  statutes, 
reference  must  always  be  had  to  the  subject  matter  of  the 
law — that  alone  being  supposed  to  be  within  the  mind  of 
the  legislator.  The  act  of  1855,  as  appears  by  its  title 
and  preamble,  is  explanatory  of  the  act  of  1854,  and  was 
passed  for  the  purpose  of  removing  doubts  which  had 
arisen  in  relation  to  the  proper  construction  of  that  act. 
Now  the  design  of  the  act  of  1854  was  to  legalize  interest 
at  the  rate  of  seven  per  cent,  within  certain  specified 
limits.  The  subject  matter  of  that  act  was  contracts 
made  within  those  limits  only.  The  subject  matter  of  the 
explanatory  act  of  1855  was  identical  with  that  of  1854, 
viz.,  contracts  made  within  those  limits  only.  When, 
therefore,  the  legislature,  in  the  act  of  1855,  legalized  all 
contracts  bearing  interest  at  seven  per  cent,  made  after 
the  act  of  1854,  they  must  be  understood  as  having  in 


MAY  TERM,  1861.  355 

McMurtrj  v.  Qiveans. 

contemplation  all  contracts  within  the  purview  of  that  act, 
and  made  under  color  of  its  authority. 

The  language  of  the  act  of  1855  is  prospective  as  well 
as  retrospective  in  its  operation.  It  is  on  this  ground 
alone  that  the  complainant  can  avail  himself  of  its  pro- 
visions, as  his  mortgage  was  given  after  the  act  went  into 
operation.  Its  effect  is  to  legalize  not  only  contracts 
then  made,  but  also  such  as  should  be  thereafter  made. 
It  was  obviously  designed  as  a  legislative  construction  of 
the  provision  of  the  act  of  1854.  The  two  statutes  must 
be  construed  together.  They  are  both  supplements  to 
the  act  against  usury,  and  constitute  a  portion  of  the 
general  law  of  the  state  upon  that  subject.  It  is  of  the 
utmost  importance  that  their  meaning  should  be  precisely 
defined.  The  true  construction  and  effect  of  the  law,  I 
think,  is  to  authorize  the  taking  of  seven  per  cent,  interest 
upon  contracts  made  in  certain  specified  districts  of  this  state. 
One  of  the  parties  must  not  only  live  in  the  locality  speci- 
fied, but  the  contract  must  be  made  there.  Seven  per  cent, 
interest  can  only  be  taken  upon  contracts  made  within  such 
locality.  Upon  all  other  contracts  (except  by  virtue  of  some 
special  statute),  six  per  cent,  continues  to  be  the  legal  rate  of 
interest,  and  contracts  upon  which  a  high  rate  is  reserved, 
are  usurious. 

Where,  then,  was  this  contract  made?  The  mortgagee 
resides  in  the  city  of  Newark,  the  mortgagor  in  the  county 
of  Sussex.  The  negotiation  for  the  money  was  carried 
on  and  completed,  the  bond  and  mortgage  executed  and 
delivered,  and  the  money  paid  to  the  mortgagor,  in  the 
county  of  Sussex.  As  to  these  facts,  there  is  no  dispute. 
Nor  do  I  find  in  the  testimony  the  least  evidence  of  the 
contract  being  made  elsewhere.  The  facts  are  very 
clearly  stated  by  David  Ryerson,  Esq.,  by  whose  agency 
the  loan  was  made.  The  property  of  the  mortgagors 
was  advertised  for  sale  under  an  execution.  They  applied 
to  Mr.  Ryerson,  who  was  president  of  the  Sussex  Bank, 
and  the  father-in-law  of  the  complainant,  for  a  loan  of 


356  CASES  IN  CHANCERY. 

'  McMurtry  v.  Giveans. 

money.  He  agreed  to  procure  the  money  for  them,  or, 
failing  in  that,  to  see  that  they  had  the  money  in  time  to 
save  their  property  from  being  sold.  The  terms  of  the 
contract,  the  amount  of  the  loan,  the  time  of  payment, 
the  security  to  be  given,  and  the  rate  of  interest,  were  all 
agreed  upon  at  Newton,  between  Mr.  Kyerson  and  the  mort- 
gagors. He  gave  the  instructions  to  the  attorney,  and  fur- 
nished the  money  for  which  the  mortgage  was  given.  All 
this  must  have  been  done  by  him  as  the  agent  of  Mc- 
Murtry. 

But  it  is  urged  that  the  mortgagors  employed  Mr.  Ryer- 
son  to  procure  the  loan  for  them,  that  they  paid  him  for 
that  purpose,  and  that  he,  as  their  agent,  negotiated  the 
loan,  on  their  behalf,  with  McMurtry.  All  that  is  said  on 
this  point,  by  the  witness,  is,  "I  procured  a  loan  of  that 
amount  for  them,  from  William  McMurtry."  Where,  when, 
or  how  that  contract  was  made,  we  are  not  informed.  For 
all  that  appears  in  evidence,  it  might  have  been  made  at 
Newton. 

But,  assuming  that  the  application  for  the  loan  and  the 
authority  to  make  it,  was  given  in  Essex,  still  the  contract 
for  the  loan  was  not  made  there.  The  utmost  that  can 
be  said  is,  that  Mr.  Ryerson,  in  executing  the  contract,  acted 
as  agent  of  both  parties.  He  applied  to  McMurtry  for  the 
loan,  as  the  agent  of  Giveans.  He  was  authorized  by  Mc- 
Murtry, as  his  agent,  to  make  the  loan  on  his  behalf.  But 
the  contract  for  the  forbearance  of  the  money,  was  made  at 
Newton. 

If  McMurtry  had  gone  to  Newton,  and  there  agreed  that 
Ryerson  should  make  the  loan  on  his  behalf,  and  furnished 
him  the  money  to  be  loaned,  and  the  parties  had  then  gone  to 
Newark  and  executed  the  contract  there,  in  pursuance  of  this 
auhtority,  it  would  scarcely  be  pretended  that  the  loan  would 
have  been  usurious,  on  the  ground  that  it  was  not  made  in 
the  county  of  Essex. 

Or  if,  upon  the  evidence  in  the  case,  the  rate  of  interest 
had  been  seven  per  cent,  in  Sussex,  and  only  six  in  Essex, 


MAY  TERM,  1861.  357 


Lokerson  v.  Siillwell. 


the  loan,  as  made,  would  not  have  been  deemed  usurious  on 
the  ground  that  it  was  made  in  Essex. 

I  am  of  opinion  that  this  contract  is  for  a  greater  rate  of 
interest  than  is  allowed  by  law,  and  is  consequently  usurious 
and  void. 

I  have  arrived  at  this  conclusion  with  some  reluctance,  not 
only  from  its  consequences  upon  the  creditor,  but  from  a  be- 
lief that  the  contract  was  made  under  a  mistake  of  law  and  a 
misapprehension  of  the  party's  rights.  But  there  is  no  pre- 
tence of  ignorance  or  mistake  of  facts,  and  the  law  will  infer 
a  corrupt  intent  where  the  fact  of  taking  more  than  six  per 
cent,  knowingly  is  proved.  Sussex  Bank  v.  Baldwin,  2 
Harr.  496. 

The  bill  must  be  dismissed. 

CITED  in  Dierks  v.  Kennedy,  1  C.  E.  Or.  212. 


LOKERSON  and  others  vs.  STILLWELL  and  others. 

1.  To  constitute  a  mortgage,  the  conveyance  must  be  originally  intended 
between  the  parties  as  a  security  for  money  or  as  an  encumbrance  merely. 

2.  Parol  evidence  is  admissible  in  equity  to  show  that  a  deed  absolute 
on  its  face  was  intended  as  a  mortgage,  and  that  the  defeasance  was  omit- 
ted by  fraud,  surprise  or  mistake. 

3.  A  deed  made  to  hinder,  delay  or  defraud  creditors  is  void  only  as 
to  creditors:  it  is  valid  as  against  the  grantor  and  his  heirs. 

4.  The  terms  of  the  contract  must  be  clearly  proved  before  a  party  is 
entitled  to  a  decree  for  its  specific  performance. 


Joel  Parker  and  Joseph  F.  Randolph,  for  complainants. 
Cannon  and  Beadey,  for  defendants. 

THE  CHANCELLOR.  The  bill  is  filed  by  the  heirs  of 
Abraham  Stillwell  against  the  heirs  of  Joseph  M.  Stillwell, 
to  redeem  certain  real  estate,  which  was  conveyed  from  Abra- 
ham to  Joseph  by  an  absolute  deed  in  fee  simple,  bearing  date 
on  the  8th  of  April,  1824. 


358  CASES  IN  CHANCERY. 

Lokerson  v.  Stillwell. 

The  instrument  in  question  is  not  a  mortgage,  nor  in 
the  nature  of  a  mortgage.  Upon  its  face  it  is  an  absolute 
deed  executed  by  Abraham  Stillwell  to  Joseph  M.  Still- 
well  for  the  consideration  of  $1600  paid  by  the  grantee 
to  the  grantor.  It  was  not  originally  intended  as  a  secu- 
rity for  money.  The  only  debt  due  from  the  grantor  to  the 
grantee  at  the  time  of  its  execution  was  already  secured  by 
bond  and  mortgage  upon  a  part  of  the  same  premises.  Those 
securities  continued  to  be  held  by  the  grantee  after  the  execu- 
tion of  the  deed. 

To  constitute  a  mortgage,  the  conveyance  must  be  origi- 
nally intended  between  the  parties  as  a  security  for  money  or 
as  an  encumbrance  merely.  2  Story's  Eq.  Jur.,  §  1018;  4 
Kent's  Com.  142. 

Parol  evidence  is  admissible  in  equity  to  show  that  it  was 
intended  as  a  mortgage,  and  that  the  defeasance  was  omitted 
by  fraud,  surprise  or  mistake.  4  Kent's  Com.  142. 

But  it  is  not  pretended  that  the  defeasance  was  omitted  by 
fraud  or  mistake.  According  to  the  case  made  by  the  plain- 
tiff's evidence  the  deed  is  precisely  what  it  was  intended  to 
be,  viz.,  a  shield  against  the  claims  of  creditors. 

The  complainant's  wife  and  daughter,  who  alone  testify 
as  to  the  transaction,  show  conclusively  that  it  was  not 
designed  as  a  security  for  a  loan,  but  in  fact  to  protect 
the  property  of  the  grantor  from  his  creditors.  If  this  be 
the  true  character  of  the  transaction,  it  is  clearly  not  a 
mortgage  nor  in  the  nature  of  a  mortgage.  A  deed  made 
to  hinder,  delay  or  defraud  creditors  is  void  only  as  to 
creditors.  It  is.  valid  as  against  the  grantor  and  his  heirs. 
Nor  will  a  court  of  equity  relieve  against  it  at  the  instance 
either  of  the  grantor  or  his  heirs.  Den  v.  Monjoy,  2  Haht. 
174;  Jackson  v.  Garnsey,  16  Johns.  JK.  192;  Roberts  on 
Fraud.  Con.  646 ;  Jackson  v.  Dutton,  3  Harrington  98. 

No  party  to  an  agreement  in  fraud  of  legal  rights  is  enti- 
tled to  the  aid  of  a  court  of  equity.  Tantum  v.  Miller,  3 
Stockt.  551 ;  McClure  v.  Purcel,  3  A.  K.  Marsh.  61. 

The  case,  as  made  by  the  bill,  is  that  subsequent  to  the 


MAY  TERM,  1861.  359 

Lokerson  v.  Still  well. 

conveyance  to  Joseph  M.  Stillwell,  a  written  agreement 
was  made  by  the  grantee  to  re-convey  to  the  grantor  the 
premises  conveyed  by  the  deed  upon  the  re-payment  of  the 
amount  then  ascertained  to  be  due  from  the  grantor  to  the 
grantee.  This  is  clearly  a  totally  distinct  contract  from  any 
that  was  or  could  have  been  made  at  the  date  of  the  deed, 
for  it  includes,  by  its  terms  and  according  to  the  complafn- 
ant's  evidence,  moneys  which  were  advanced  after  the  date 
of  the  deed. 

It  is  this  contract  of  which  the  complainants,  after  the 
lapse  of  thirty  years,  ask  a  specific  performance. 

The  contract  which  is  set  out  in  the  bill  is  essentially 
variant  from  that  established  in  evidence.  The  bill  sees 
out  a  contract  purporting  to  have  been  made  on  the  22d 
of  October,  1827,  for  the  re-conveyance  of  the  premises 
upon  the  re-payment  of  $630,  with  interest.  The  con- 
tract which  the  complainants  claim  to  have  proved  was 
made  on  the  12th  of  August,  1825,  by  the  terms  of  which 
the  re-conveyance  was  to  be  made  on  the  re-payment  of 
$541.30,  with  interest.  There  is  no  correspondence  be- 
tween the  allegation  and  the  proof.  They  differ  in  essen- 
tials. If  the  complainants'  equity  was  clear,  and  this  was 
the  only  difficulty  in  the  way  of  a  recovery,  the  bill  might 
be  amended  upon  proper  terms,  even  at  this  stage  of  the 
cause. 

But  the  terms  of  the  contract  are  not  proved  with  sufficient 
clearness  to  warrant  the  interference  of  the  court.  No  rule 
is  better  settled  than  that  which  requires  that  the  terms  of  the 
contract  should  be  clearly  proved  before  a  party  is  entitled 
lo  a  decree  for  its  specific  performance. 

The  contract  is  alleged  to  have  been  in  writing.  Three 
witnesses,  who  saw  it,  speak  as  to  its  contents.  The  only 
witness  who  is  not  a  party  in  the  cause  is  John  D.  Barka- 
low.  He  was  an  aged  witness.  He  saw  the  paper  once, 
and  read  it  in  the  spring  of  1834,  twenty-two  years  before 
his  examination.  He  describes  it  as  having  three  names 
signed  to  it.  Joseph  M.  Stillwell  was  one ;  the  other  two, 


360  CASES  IN  CHANCERY. 

Lokerson  v.  Stillwell. 

he  thinks,  were  Rebecca  Stillwell  and  Michael  Stillwell. 
There  were  three  seals  to  the  instrument,  a  seal  opposite 
each  name.  Whether  the  names  of  Rebecca  and  Michael 
were  signed  as  sureties,  he  does  not  know.  He  thinks 
the  paper  specified  five  hundred  and  some  few  dollars,  but 
he  is  not  positive  as  to  the  amount.  The  other  witnesses 
who  speak  as  to  the  contents  of  the  writing  are  Phebe 
Stillwell,  the  widow  of  the  grantor  and  a  defendant  in  the 
cause,  and  Sarah  Lokerson,  one  of  the  complainants. 
Both  of  these  witnesses  had  full  opportunity  of  being 
well  acquainted  with  the  contents  of  the  paper.  Accord- 
ing to  their  evidence,  they  had  both  had  it  in  their  keep- 
ing, had  frequently  read  it,  and  spoken  of  its  contents. 
The  paper  passed  from  their  possession  in  June,  1835, 
after  which  neither  of  them  saw  it.  The  bill  in  this  cause 
was  exhibited  in  June,  1855.  It  was  an  injunction  bill, 
and  was  sworn  to  on  the  12th  of  June  by  the  complain- 
ants, including  Mrs.  Lokerson  and  Ralph  Hulse,  who  had 
also  seen  the  original  contract.  The  bill  was  not  only 
sworn  to,  but  must  have  been  prepared  upon  information 
furnished  by  Mrs.  Lokerson  and  Mrs.  Stillwell,  for  no 
other  living  persons  possessed  a  knowledge  of  the  facts. 
Hulse,  in  his  testimony,  is  silent  as  to  the  terms  of  the 
contract.  The  bill,  as  we  have  seen,  states  {he  contract 
to  have  been  dated  on  the  22d  of  October,  1827,  and  to  be 
an  engagement  to  re-convey  upon  the  re-payment  of  $630, 
with  interest.  Mrs.  Phebe  Stillwell  filed  her  answer, 
sworn  to  on  the  17th  of  August,  1855,  in  which  she  dis- 
tinctly alleges  the  agreement  to  have  been  as  set  out  in 
the  bill.  It  is  but  justice  to  these  witnesses  to  believe 
that  they  remembered  the  terms  of  the  contract  to  be  as 
stated  by  them  under  oath  in  the  bill  and  answer.  On 
her  examination  as  a  witness,  in  November,  1855,  Mrs. 
Stillwell  assigns  a  different  date  to  the  contract  from  that 
stated  in  her  answer,  but  is  unable  to  say  whether  the 
contract  was  for  the  re  conveyance  of  the  premises  upon 
the  re-payment  of  six  hundred  and  odd  dollars,  or  five 


MAY  TERM,  1861.  361 


Lokerson  v.  Stillwell. 


hundred  and  odd  dollars,  with  interest.  She  also  describes 
the  contract  (as  did  Barkalow)  as  having  three  names  con- 
secutively, one  under  the  other,  with  a  seal  attached  to  each 
name. 

Surah  Lokerson,  the  only  remaining  witness  who  speaks 
of  the  contents  of  the  paper,  and  the  only  witness  who  de- 
tails its  contents  with  any  apparent  certainty,  was  examined 
in  February,  1858.  With  seeming  confidence,  she  states 
that  the  contract  was  dated  on  the  12th  of  August,  1825, 
and  that  the  re-conveyance  was  to  be  made  by  Joseph  M. 
Stillwell  upon  the  payment  of  $541.30,  with  interest.  She 
gives  no  satisfactory  account  for  her  change  of  memory  after 
the  time  of  filing  the  bill.  The  remarkable  change  of 
memory  in  both  these  witnesses  is  satisfactorily  explained 
by  the  documentary  evidence  on  the  part  of  the  defendants. 
After  the  answer  of  Phebe  Stillwell  had  been  filed,  the  de- 
fendants filed  their  answer  denying  the  alleged  agreement  to 
re-convey,  as  charged  in  the  bill ;  and,  in  disproof  thereof, 
alleging  that,  in  addition  to  the  bond  and  mortgage  for 
$409.27,  held  by  Joseph  M.  Stillwell  against  his  brother 
Abraham  at  the  date  of  the  deed,  on  the  8th  of  April,  1824, 
Abraham  became  further  indebted  by  a  sealed  bill,  dated  on 
the  12th  of  August,  1825,  for  $541.30,  which  remained  in 
the  hands  of  Joseph  M.  Stillwell  at  his  death,  and  which 
still  remains  unpaid  in  the  hands  of  his  executors.  It  is 
evident  that  this  documentary  evidence,  which  is  made  an 
exhibit  in  the  cause,  was  fatal  to  the  complainants'  case  as 
made  by  the  bill.  With  remarkable  facility,  the  memory  of 
each  of  the  witnesses  adapts  itself  to  this  new  phase  of  the 
case.  It  is  assumed  that  this  was  not  an  additional  debt  to 
that  contained  in  the  mortgage,  but  that  in  fact  this  sealed 
bill  must  have  been  given  for  the  amount  found  due  on  the 
settlement.  The  date  of  the  settlement  is  at  once  changed  in 
the  memory  of  the  witnesses  from  the  22d  of  October,  1827, 
to  the  12th  of  August,  1825,  and  the  balance  of  indebted- 
ness from  $630  to  $541.30. 


362  CASES  IN  CHANCERY. 

Lokerson  v.  Stillwell. 

Without  adverting  to  other  serious  objections  to  the 
reliability  of  this  evidence,  and  without  imputing  any 
intentional  misrepresentation  or  want  of  veracity  to 
either  of  these  witnesses,  it  is  enough  to  say  that  no  de- 
cree ought  to  be  made  affecting  the  rights  of  parties  liti- 
gant upon  evidence  upon  which  so  little  reliance  can 
safely  be  placed.  The  terms  of  the  contract  are  not 
proved  with  sufficient  certainty  to  warrant  a  decree  for  a 
re-conveyance. 

There  are  other  obstacles  of  a  technical  character  in  the 
way  of  the  complainants'  right  to  relief,  to  which  it  is  un- 
necessary to  advert.  Enough  has  been  said  to  dispose  of 
the  cause. 

A  great  mass  of  evidence  has,  however,  been  taken  re- 
lating to  the  question  at  issue  between  the  parties.  It  is 
a  family  dispute,  in  which  the  memory  of  the  dead  and 
the  feelings  of  the  living,  as  well  as  a  question  of  pro- 
perty, are  involved.  On  these  accounts  I  felt  it  my  duty 
to  examine  the  evidence  in  relation  to  the  merits  of  the 
cause  with  more  than  ordinary  care.  It  may  not  be  im- 
proper, for  the  satisfaction  of  the  parties,  to  state  the 
result  of  that  examination,  as  it  bears  upon  the  equity  of 
the  complainants'  claim,  aside  from  all  questions  of  a 
technical  character. 

Abraham  Stillwell,  the  ancestor  of  the  complainants, 
and  Josph  M.  Stillwell,  the  ancestor  of  the  defendants, 
were  brothers.  In  the  year  1815  a  partition  was  made  of 
the  real  estate  of  their  father  between  his  four  sons,  and 
the  land  in  question,  consisting  of  about  one  hundred  and 
n,ine  acres,  was  assigned  to  Abraham.  On  the  30th  of  Au- 
gust, 1815,  he  gave  to  his  brother  Joseph  a  bond  for 
$409.27,  secured  by  a  mortgage  of  even  date  upon  fifty 
acres  of  the  tract.  On  the  8th  of  April,  1824,  Abraham, 
for  the  consideration  of  $1600,  expressed  in  the  deed, 
conveyed  all  his  land  (109  acres)  to  his  brother  Joseph  in 
fee.  On  the  14th  of  June  following,  Abraham  was  dis- 
charged as  an  insolvent  debtor.  On  the  12th  of  August, 


MAY  TERM,  18G1.  363 

Lokerson  v.  Stillwell. 

1825,  he  gave  to  his  brother  Joseph  his  sealed  bill  for 
$541.30.  So  far  the  facts  are  matters  of  record,  or  are 
vouched  for  by  written  documents,  and  admit  of  no  dis- 
pute. From  this  point  the  controversy  arise?.  I  shall 
assume  the  material  facts  to  be  substantially  as  claimed 
by  the  complainants.  In  or  about  the  year  1825,  Joseph 
gave  to  his  brother  an  agreement  to  re-convey  the  land  so 
conveyed  to  him  whenever  the  debt  due  should  be  paid. 
In  December,  1830,  Abraham  was  again  discharged  as  an 
insolvent  debtor.  On  the  13th  of  January,  1831,  he  died 
intestate,  leaving  a  widow  and  ten  children,  the  youngest 
an  infant  of  tender  age,  the  eldest  barely  twenty-one 
years  of  age.  They  were  left  in  indigent  circumstances, 
having  no  means  of  support  except  the  land  upon  which 
they  lived.  The  land  was  encumbered  with  the  debt  due 
to  Joseph.  The  title  was  in  him,  subject  to  the  widow's 
dower.  In  this  state  of  things  the  family  were  permitted 
to  remain  in  the  quiet  occupancy  of  the  premises  until 
1835.  The  mortgage  to  Joseph  had  then  been  outstand- 
ing for  twenty  years.  Ten  years  had  elapsed  since  he 
took  the  legal  title,  and  agreed  to  permit  the  mortgagor 
to  redeem.  The  mortgagor  had  died,  leaving  a  large  and 
dependent  family.  The  debt  had  increased,  according  to 
the  charge  of  the  complainant's  bill,  from  about  $400  to 
$8CO.  The  creditor  was  clearly  entitled  to  have  the  land 
or  his  money.  If  the  heirs  of  his  brother  were  entitled  to  re- 
deem he  was  entitled  to  foreclose.  Foreclosure  and  redemp- 
tion are  correlative  terms. 

Had  Joseph  M.  Stillwell  commenced  proceedings  to 
foreclose  the  right  to  redeem,  or  taken  any  other  step  to 
perfect  his  title,  the  rights  of  the  heirs  must  have  been 
sacrificed.  Under  these  circumstances,  he  made  a  deed 
to  the  widow  on  the  15th  of  June,  1835,  conveying  to  her 
in  fee  simple  sixty-six  acres,  more  than  half  the  tract  in 
quantity,  though  less  in  value.  The  balance  of  the  land 
he  conveyed  to  his  brother  Jeremiah,  who  owned  the 
adjoining  farm,  for  $800,  the  precise  amount  tor  which 


364  CASES  IN  CHANCERY. 

Lokerson  v.  Stillwell. 

lie  hold  a  claim  against  the  estate.  Holding  the  legal  title, 
he  sold  so  much  of  the  land  as  sufficed  to  pay  his  own  claim, 
and  conveyed  the  balance  in  fee  to  the  widow,  thus  securing 
a  home  to  herself  and  her  children,  which  they  have  since 
enjoyed  unmolested.  If  this  course  was  not  strictly  legal,  it 
surely  was  not  inequitable  nor  prejudicial  to  the  interests  of 
the  heirs  of  Daniel  Stillwell. 

At  the  time  of  this  arrangement  the  agreement  of  Joseph 
M.  Stillwell  to  permit  the  heirs  to  redeem  was  given  up  by 
the  widow.  She  now  alleges,  indeed,  that  it  was  given  up 
from  fear  and  the  threats  of  Joseph  M.  Stillwell.  But  the 
whole  circumstances  repel  the  idea  that  it  was  obtained  upon 
compulsion.  The  application  was  made  to  her  in  her  own 
house,  where  she  was  accompanied  by  her  friends.  She  went 
to  the  house  of  her  daughter,  with  whom  she  had  left  the 
paper,  procured  it,  and,  as  the  evidence  shows,  voluntarily 
delivered  it  to  Mr.  Stillwell.  Three  of  Abraham's  children 
•were  then  of  age,  a  son  and  two  married  daughters.  The 
family  were  permitted  to  remain  on  the  premises  till  the 
spring  of  1836,  when  they  voluntarily  removed  ;  one  of  the 
sons-in-law  taking  down  and  removing  a  small  house  which 
he  had  erected  upon  that  part  of  the  premises  conveyed  to 
Jeremiah  Stillwell.  The  arrangement  appears  to  have  been 
acquiesced  in  for  a  period  of  twenty  years,  until  the  filing  of 
thy  bill  in  this  cause,  and  until  the  parties  to  the  transaction 
and  most  of  the  witnesses  are  dead.  The  difficulty  at  this 
remote  period  has  probably  been  occasioned  by  the  increased 
value  of  the  property.  There  is  nothing  in  the  case,  as  stated 
by  the  complainants  themselves,  that  entitles  them  to  relief 
in  a  court  of  equity. 

I  am,  nevertheless,  satisfied  that  the  bill  was  filed  by  thj 
heirs  of  Abraham  Stillwell  in  good  faith  and  with  an  honest 
conviction  that  they  had  a  claim  against  the  estate  of  their 
uncle  which  they  were  entitled  to  have  enforced.  The  course 
adopted  by  Joseph  M.  Stillwell  may  have  furnished  some 
ground  for  this  opinion. 

The  bill  will  therefore  be  dismissed,  without  cu»U. 


MAY  TERM,  1861.  365 


Coles  v.  Coles. 


COLES  vs.  COLES. 

1.  In  partition  suits,  the  costs  of  the  proceeding,  as  well  as  the  partition 
itself,  will  be  charged  upon  the  several  shares  in  proportion  to  their 
respective  values. 

2.  Counsel  fees   do   not   properly  constitute   a   part  of  the  costs  and 
expenses  to  be  charged  against  the  owners  of  the  several  shares. 

3.  The  court  will  allow  to  the  commissioners  such  sum  beyond  the  usual 
fees  fixed  by  the  statute  as  may  be  proper. 

4.  The  report  of  the  commissioners,  designating  the  boundaries  of  the 
several  lots,  with  the  map,  constitutes  the  usual  return,  but  the  cost  of 
making  a  field-book  will  be  allowed. 

5.  A  charge  for  drawing  the  return  is  proper. 

6.  The  cost  of  a  copy  of  the  return  for  record  in  the  county  clerk's 
office,  allowed  in  this  case. 

7.  A  share  may  be  subdivided  on  partition,  and  the  costs  thereof  will 
oe  charged  on  that  share. 

Rutherford,  for  complainant. 
Zubriskie,  for  defendant. 

THE  CHANCELLOR.  All  the  questions  raised  upon  the 
hearing  relate  to  the  costs  and  expenses  of  the  proceeding. 

1.  By  whom  are  the  costs  and  expenses  to  be  borne? 

The  general  rule  of  the  Court  of  Chancery  in  England  is 
understood  to  be  that  declared  by  the  Chancellor  in  Agar  v. 
Fairfax,  17  Vesey  558,  viz.,  that  as  the  party  came  into  equity 
instead  of  going  to  law,  for  his  own  convenience,  the  rule  of 
law  should  be  adopted,  and,  therefore,  no  costs  should  be 
given  until  the  commission ;  that  the  cost  of  issuing,  exe- 
cuting, and  confirming  the  partition,  should  be  borne  by  the 
parties  in  proportion  to  the  value  of  their  respective  interests, 
and  that  there  should  be  no  costs  of  the  subsequent  proceed- 
ings. Allnat  on  Partition  116;  2  Darnell's  Ch.  Prac.  1387; 
1  Smitli's  Chan.  Prac.  481. 

This  practice  of  denying  the  complainant  the  costs  of 
the  bill  for  partition  in  equity,  has  been  adopted  in  anal- 

VOL.  ii.  z 


366  CASES  IN  CHANCERY. 

Coles  v.  Coles. 

ogy  to  the  practice  at  law.  No  damages  are  recoverable  in 
the  writ  of  partition,  and,  consequently,  no  costs  are  given 
by  the  statute  of  Gloucester.  Nor  do  any  of  the  English 
statutes  which  authorize  partition,  where  it  could  not  be  had 
at  common  law,  give  costs.  Therefore,  the  party  who  pro- 
cures the  partition,  is  at  the  whole  expense.  Allnat  on  Par- 
tition 75. 

Our  statutes  have  entirely  changed  the  law  upon  this  sub- 
ject. It  appears,  by  the  preamble  of  the  act  of  1789  (Pat- 
erson  89),  that  the  fact  that  the  plaintiff  was  obliged  to  pay 
the  whole  costs  and  charges  upon  writs  of  partition,  was  one 
of  the  evils  which  that  statute  was  designed  to  remedy.  The 
whole  expense  of  the  partition  is,  by  the  eleventh  section  of 
that  act,  directed  to  be  divided  among  the  shares,  and  to  be 
paid  by  the  persons  to  whom  the  shares  are  allotted.  The 
act  of  1797,  which  regulates  the  proceedings  on  writs  of  par- 
tition, provides  that  in  all  suits  of  partition  instituted  by 
virtue  of  that  act  wherein  the  demandant  shall  recover,  the 
costs  shall  be  divided  and  apportioned,  by  the  court,  among 
the  demandant,  defendant,  tenant,  and  others  concerned, 
according  to  their  respective  parts  and  purparts  of  the  land. 
Paterson  251,  §  8;  Nix.  Dig.  582,  §  47. 

Equity  follows  the  practice  at  law,  and  charges  the 
costs  of  the  proceeding,  as  well  as  the  expenses  of  the 
partition,  upon  the  several  shares,  in  proportion  to  their 
respective  values.  This  is  the  well-settled  rule  of  the  court, 
and  is  in  conformity  with  the  practice  in  New  York. 
P  helps  v.  Green,  3  Johns.  Ch.  JR.  306 ;  Tibbits  v.  Tibbito,  7 
Paige  204. 

The  rule  is,  moreover,  an  equitable  one.  If  the  title  is 
clear,  partition  is  a  matter  of  right.  Parker  v.  Gerard, 
Ambler  236 ;  Baring  v.  Nash,  I  Vesey  &  B.  553 ;  Wisely  v. 
Findlay,  3  Rand.  361. 

If  a  party  is  deprived  of  his  right  by  reason  of  the  un- 
willingness or  inability  of  his  co-tenants  to  make  parti- 
tion, and,  coming  into  a  court  of  equity,  succeeds  in  estab- 
lishing and  enforcing  his  right,  he  is  entitled  to  have 


MAY  TERM,  1861.  367 


Coles  v.  Coles. 


the  costs  of  establishing  his  right  to  the  partition,  as  well  as 
the  expense  of  making  it,  borne  by  the  several  owners,  in 
proportion  to  their  respective  interests  in  the  land. 

2.  Do  counsel  fees  constitute  properly  a  part  of  the  costs 
and  expenses  which  may  be  charged  against  the  owners  of 
the  several  shares  ? 

There  seems  to  be  no  clear  principle  upon  which  the 
allowance  can  be  justified.  Counsel  fees  constitute  no 
part  of  the  legal  costs  of  a  suit  in  chancery.  There  is 
no  statutory  warrant  for  the  allowance.  There  is  and  can 
be  no  standard  by  which  the  allowance  can  be  regulated. 
The  clause  in  the  24th  section  of  the  act  relative  to  par- 
tition, (Nix.  Dig.  577,)  authorizing  such  further  reasonable 
allowance  as  the  court  may  judge  proper,  refers  to  an  allow- 
ance to  the  commissioners  only.  The  provision,  moreover, 
relates  to  proceedings  under  the  statute.  By  the  New  York 
practice,  the  allowance  appears  to  be  limited  .to  the  costs 
"  taxed  as  between  party  and  party."  Such  is  the  form  of 
the  decree.  3  Hoffman's  Ch.  Prac.  348 ;  5  Harbour's  Ch. 
Prac.  728,  742. 

As  between  counsel  and  client,  the  practice  in  this  state 
has  been  to  allow  counsel  fees.  The  Supreme  Court,  at  Sep- 
tember Term,  1830,  in  the  matter  of  the  partition  of  the  real 
estate  of  Rogers  and  Warrington,  decided  that  a  counsel  fee 
of  ten  dollars,  and  no  more,  should  be  allowed  in  proceed- 
ings for  partition  under  the  statute.  The  claim  was  not  re- 
sisted. All  the  parties  were  in  fact  represented  by  the  same 
counsel.  Since  then  the  allowance  of  a  counsel  fee  in  th6 
Supreme  Court  has  been  usual. 

In  this  court  the  practice  has  been  by  no  means  uni- 
form. Counsel  fees,  varying  greatly  in  amount,  have,  in 
many  instances,  beeu  allowed.  In  many  cases  the  allow- 
ance has  not  been  made.  I  am  aware  of  no  instance  in 
which  it  has  been  made  after  objection  from  any  of  the 
parties.  The  order  for  the  allowance  is  frequently  based 
on  the  consent  of  parties  or  on  the  statement  that  the 
parties  concur  in  the  allowance.  Where  this  is  the  case, 


368  CASES  IN  CHANCERY. 

CoJes  v.  Coles. 

or  where  the  proceeding  is  in  fact  amicable  and  in  behalf 
of  all  the  parties  interested,  the  propriety  of  the  allow- 
ance is  manifest.  The  aid  of  counsel  is  necessary  to 
investigate  title,  to  examine  conflicting  claims,  and  to 
conduct  the  cause.  Where  the  defendant  concurs  in  the 
proceeding,  there  is  no  reason  why  the  complainant  should 
be  compelled  to  bear  this  part  of  the  expense  more  than 
any  other.  In  such  case  the  complainant's  counsel  repre- 
sents the  interests  and  protects  the  rights  of  all  the 
parties.  All  are  presumed  to  be  equally  benefited  by 
the  proceedings.  But  the  complainant's  claim  to  parti- 
tion may  be  resisted.  The  proceedings  may  ba  hostile, 
or,  if  not  hostile,  the  defendants  may  employ  their  own 
counsel,  and  by  answer  seek  to  protect  their  interests.  If 
the  plaintiff's  title  is  disputed,  or  the  partition  opposed  upon 
any  ground  unsuccessfully,  the  defendants  will  be  compelled 
to  pay  costs.  Hill  v.  Fulbrook,  Jacob's  R.  574 ;  Morris  v. 
Timmins,  1  Beav.  411.  , 

And  if  no  opposition  is  made  to  the  partition,  and  the  de- 
fendants choose  to  employ  their  own  counsel,  why  should 
they  be  compelled  to  pay  the  counsel  of  the  complainant  ? 
If  the  complainant  is  entitled  to  an  allowance  for  counsel 
fees,  why  not  the  defendants  also  ? 

As  the  proceeding  in  this  case  is  not  amicabla,  and  as  the 
claim  for  counsel  fees  is  resisted  by  the  defendants,  it  must 
be  denied. 

3.  The  statute  fixes  the  per  diem  allowance  to  each  com- 
missioner for  each  day  employed  in  the  service.  Though 
the  statute,  in  terms,  applies  only  to  proceedings  under  the 
act,  its  directions  have  properly  been  adopted  in  the 
allowance  of  commissioners'  fees  in  equity.  The  court  is 
authorized,  at  its  discretion,  to  make  such  further  reason- 
able allowance  as  may  be  judged  proper.  This  allowance 
must  be  proportioned  to  the  character  and  extent  of  the 
services  performed  and  the  responsibility  incurred.  Two 
hundred  and  fifty  dollars  additional  allowance  will  be 
made  to  each  of  the  commissioners.  This  amount,  though 


MAY  TERM,  1861.  369 

Coles  v.  Coles. 

large,  is  assented  to  by  the  defendants,  and  is  not  dispropor- 
tioned  to  the  magnitude  of  the  estate,  the  duties  performed, 
and  the  responsibility  incurred  in  the  discharge  of  the  office. 
The  additional  sura  of  one  hundred  and  fifty  dollars,  pro- 
posed to  be  allowed  to  one  of  the  commissioners  for  extra 
services  in  mapping,  drafting,  &c.,  is  proper,  and  will  be 
allowed,  but  it  constitutes  no  part  of  his  compensation  as 
commissioner. 

4.  The  statute  (Nix.  Dig.  574,  §  7,)  requires  that  the  com- 
missioners should  return  the  map  and  field  book,  which  are 
ordered   to  be  recorded.     The  report  of  the  commissioners 
designating   the    boundaries   of  the    several    lots,   with   the 
map,  constitutes  the  usual  return.      No  other  field-book  is 
ordinarily  filed — still,  a  field-book   must  be  prepared,  and 
the   expense    of  preparing  it,  in    a   case  like  the  present, 
constitutes  a  part  of  the  necessary  expenses   of  the   com- 
missioners.    They  are,  in  the  first  place,  the  proper  judges 
of  the  particular  character  of  the  work  to  be  done,  and  the 
proper  charge  for  the  service.      If  the  amount  charged  is 
deemed  excessive,  and  counsel  cannot  agree  as  to  the  proper 
allowance,  it  must  be  referred  to  a  master  to  determine  the 
amount. 

5.  Drawing  the  return  of  the  commissioners  is  sometimes 
performed   by   the  commissioners,   or   in    their    behalf,  and 
included  in  their  bill  of  charges  and  expenses.     If  drawn  by 
counsel,  and  not  charged  by  the  commissioners,  it  is  inclu- 
ded in  the  taxed  bill  of  costs.     In  either  form,  the  charge  is 
proper. 

6.  Owing  to  the  extent  and  value  of  the  property,  and  the 
great  number  of  city  lots   included  in   the  partition,  it  is  a 
matter  of  public  concern,  as  well  as  of  private  interest,  that  a 
copy  of  the  return  and  map  should  be  of  record  in  the  clerk's 
office  of  the  county  of  Hudson.    It  is  conceded  by  the  parties 
that  this  is  proper.     An  allowance  will  be  made  for  the  costs 
of  such  extra  copy. 

7.  The  subdivision  of  one  of  the  shares  by  the  commis- 
sioners   is    in    accordance   with    the    practice   of  the  court. 


370  CASES  IN  CHANCERY. 

Chapman  v.  Hunt. 

The  additional  costs  occasioned  by  the  subdivision  must  be 
borne  by  that  share. 

Let  the  final  decree  be  prepared  in  accordance  with  these 
suggestions. 


GEORGE  M.  CHAPMAN  vs.  ISAAC  L.  HUNT 

1.  A  chattel  mortgage  is  a  valid  contract  under  the  laws  of  this  state,  and 
the  rights  of  the  parties  under  it  will  be  protected  and  enforced  at  law 
and  in  equity. 

2.  The  interest  of  the  mortgagee  in  personal  property,  where  the  posses- 
sion remains  with  th<;  mortgagor,  and  before  condition  broken,  cannot  be 
taken  in  execution  as  the  property  of  the  mortgagee. 

3.  After  forfeiture  the  mortgagee,  even  without  foreclosure,  may,  upon 
due  notice,  sell  and  transfer  the  absolute  right  to  the  chattels. 

4.  Actual  possession  of  the  chattel  is  not  essential  to  support  his  title. 

5.  Equity  will  not  permit  the  mortgagor  to  sell  the  chattels  to  which 
the  mortgagee  has  the  legal  title  and  the  right  of  immediate  possession, 
and  to  place  them  beyond  the  reach  of  the  mortgagee  and  the  control  of  the 
court. 


Keasbey,  for  the  motion. 
JRichey,  contra. 

THE  CHANCELLOR.  The  bill  in  this  case  was  filed  to 
foreclose  certain  chattel  mortgages,  given  by  the  defendant, 
and  now  held  and  owned  by  the  complainant.  The  bill 
prays  that  the  property  mortgaged  may  be  sold  to  pay  the 
mortgage  debt;  that  in  the  meantime  the  defendant  may 
be  restrained,  by  injunction,  from  aliening,  encumbering, 
or  otherwise  disposing  of  or  interfering  with  it,  and  that 
a  receiver  may  be  appointed.  An  injunction  issued  pur- 
suant to  the  prayer  of  the  bill.  No  application  has  been 
made  for  the  appointment  of  receiver.  No  answer  has 
been  filed  to  the  bill,  but  the  defendant  has  demurred  for 
defects  both  of  form  and  substance.  A  motion  is  now 
made  to  dissolve  the  injunction  for  want  of  equity  in  the 


MAY  TERM,  1861.  371 

Chapman  v.  Hunt. 

bill,  and   because  the  injunction,  as  to  the  extent  of  its  re- 
quirements, was  illegally  and  iraprovidently  issued. 

A  chattel  mortgage  is  a  valid  contract  under  the  laws  of 
this  state,  and  the  rights  of  the  parties  under  it  will  conse- 
quently be  protected  and  enforced  at  law  and  in  equity  upon 
the  principles,  to  the  extent  and  in  the  mode  in  which  those 
tribunals  respectively  enforce  contracts  and  administer  relief. 
Doughton  v.  Gray,  2  Stockt.  323  ;  Runyon  v.  Groshon,  1 
Beasley  86  ;  Long  Dock  Co.  v.  Mattery,  1  Beasley  93,  431  ; 
Miller  ads.  Shreve  and  Pancoast,  (Sup.  Court,  June  Term, 
1861,  not  yet  reported.) 

In  Doughton  v.  Gray,  the  Chancellor  declares,  that  "in 
New  Jersey  the  same  doctrine  prevails  as  to  the  respective 
rights  of  mortgagor  and  mortgagee  of  personal  property,  and 
as  to  the  character  of  their  respective  interests,  as  governs 
mortgages  of  real  property."  An  obvious  and  necessary 
qualification  of  this  general  doctrine  will  be  found  in  the 
opinion  of  the  Chief  Justice  in  Miller  ads.  Shreve  et  al., 
where  the  doctrine  is  thus  stated.  Mortgages  of  personal 
property  are  valid  by  the  laws  of  New  Jersey,  and  the  rights 
of  the  mortgagees  are  similar  to  those  of  mortgagees  of  real 
estate,  except  in  those  respects  in  which  the  title  to  chattels 
and  real  estate  differs. 

Indeed,  so  far  as  I  am  aware,  the  validity  of  a  chattel 
mortgage,  as  between  the  parties  mortgagor  and  mortgagee, 
has  never  been  seriously  questioned.  There  is  no  reason,  in- 
deed, why  that  form  of  contract  should  not  be  as  valid  and 
obligatory  between  the  parties  as  any  other  which  they  may 
choose  to  adopt.  The  effect  of  the  contract  upon  the  rights 
of  others  and  the  precise  rights  of  the  parties  under  the  con- 
tract have  been  and  still  are  the  subject  of  discussion  and  of 
some  difficulty. 

There  is  no  denial  in  the  present  case  of  the  complain- 
ant's right  to  foreclose  the  mortgage,  to  have  the  chattels 
sold,  and  the  proceeds  applied  in  satisfaction  of  the  mort- 
gage debt.  That  right  was  expressly  adjudicated  in  the 
case  of  Long  Dock  Co.  v.  Mattery,  1  Beasley  93.  But  it  ia 


372  CASES  IN  CHANCERY. 

Chapman  v.  Hunt. 

urged  that  the  mortgagor,  being  in  possession,  has  the 
right  to  sell  or  encumber  the  property  ;  that  he  thereby, 
as  in  case  of  real  estate,  merely  disposes  of  the  equity  of 
redemption,  and  does  not  affect  the  rights  of  the  mortga- 
gee. In  Doughten  v.  Gray,  already  cited,  the  Chancellor 
said,  "  the  mortgagor  is  in  possession,  and  his  title  is  a 
perfect  one,  subject  only  to  the  payment  of  the  debt.  He 
is  the  real  and  substantial  owner  of  the  property  for  every 
valuable  purpose.  Pie  may  sell  it,  subject  of  course  to 
the  mortgage."  It  will  be  found,  nevertheless,  that  there 
is  necessarily  resulting  from  the  nature  of  the  thing  mort- 
gaged a  clear  distinction  between  the  sale  of  a  chattel  and 
of  real  estate  by  the  mortgagor,  and  of  the  right  of  the 
mortgagor  to  exercise  the  power  of  sale.  In  the  case  of 
the  sale  of  real  estate  by  the  mortgagor  nothing  passes 
but  the  equity  of  redemption.  It  may  be  sold  by  execu- 
tion at  law  and  the  purchaser  be  put  in  possession.  The 
sheriff  thereby  incurs  no  liability,  the  rights  of  the  mort- 
gagge  are  in  no  wise  interfered  with,  the  purchaser  takes 
subject  to  his  title.  But  in  the  case  of  personal  chattels, 
where  delivery  and  possession  constitute  the  evidence  of 
title,  the  case  is  entirely  different.  In  the  case  of 
Doughten  v.  Gray  the  property  mortgaged  was  assigned 
by  the  mortgagor  for  the  benefit  of  creditors.  It  was 
levied  upon  under  execution  against  the  mortgagee.  The 
assignee  sold  the  chattel,  and  converted  it  into  money. 
It  was  held  that  the  chattel,  not  the  mere  equity  of  re- 
demption, passed  by  the  sale,  that  the  purchaser  became 
the  owner  at  law,  and  that  the  mortgagee  had  an  equitable 
lien  on  the  proceeds  of  the  sale  for  the  payment  of  the 
purchase  money.  It  was  further  held,  that  the  interest 
of  the  mortgagee  in  personal  property,  where  the  posses- 
sion remains  with  the  mortgagor,  and  before  condition 
broken,  cannot  be  taken  in  execution  as  the  property  of 
the  mortgagee.  In  Miller  ads.  Shreve  and  Pancoast,  the 
chattels  mortgaged  were  seized  in  the  hands  of  the  mort- 
gagor, upon  execution  at  law  against  him,  and  held  by 


MAY  TERM,  1861.  373 

Chapman  r.  Hunt. 

the  sheriff  before  the  money  was  due  upon  the  mortgage. 
The  court  held  that  the  sale  by  the  sheriff  was  a  conversion 
of  the  property  sufficient  to  maintain  trover;  that  the  plain- 
tiffs at  the  time  had  title  and  the  right  of  immediate  posses- 
sion ;  that  the  sale  by  the  sheriff  was  a  trespass  upon  the 
plaintiff's  property,  and  therefore  an  unlawful  conversion. 
Brackett  v.  Bullard,  12  Mete.  308. 

But  whatever  may  be  the  right  of  the  mortgagor  to  sell 
the  chattel  prior  to  the  forfeiture,  there  is  no  pretence  of 
such  right  after  the  forfeiture  has  occurred.  By  the 
mortgage  the  whole  legal  title  passes  conditionally  to  the 
mortgagee;  and  if  the  goods  are  not  redeemed  at  the  time 
stipulated  the  title  becomes  absolute  at  law,  though  equity 
will  interfere  to  compel  a  redemption.  Actual  possession 
is  not  essential  to  support  his  title.  Upon  due  notice  without 
foreclosure  he  may  sell  and  transfer  the  absolute  right  to  the 
chattel.  Story  on  Bail.  287,  and  cases  cited,  note  2  ;  Story's 
Eq.  Jur.}  §  1031,  and  cases  cited,  note  3  ;  Runyon  v.  Groshon, 
1  Beasley  86. 

In  the  case  before  the  court  the  mortgage  was  forfeited. 
The  mortgagor  had  failed  to  pay  the  debt.  The  mort- 
gagee was  entitled,  by  the  express  terms  of  the  mortgage, 
to  take  possession  of  and  sell  the  mortgaged  property,  and 
apply  the  proceeds  to  the  payment  of  the  debt.  But  to 
bar  the  equity  of  redemption  he  filed  his  bill  in  this  court 
to  obtain  a  foreclosure  and  sale.  While  in  the  process  of 
foreclosure  the  court  will  surely  not  permit  the  mort- 
gagor to  sell  the  property  to  which  the  mortgagee  has  the 
legal  title  and  the  right  of  immediate  possession,  and  to 
attempt  to  place  it  beyond  the  reach  of  the  mortgagee  or 
the  control  of  the  court.  The  bill  charges  that  the  de- 
fendant threatens  and  intends  to  sell  the  mortgaged  prop- 
erty, and  I  entertain  no  doubt  of  the  power  of  the  court  to 
prevent  such  sale  by  injunction,  nor  of  the  propriety  of  its 
exercise. 

It  is  further  objected  that  the  bill  does  not  charge  that 
the  notes  included  in  and  intended  to  be  secured  by  the 


374  CASES  IN  CHANCERY. 

Chapman  v.  Hunt. 

mortgage  given  to  Samuel  I.  Hunt  were  ever  assigned 
to  the  complainant.  -Whether  the  charge  in  the  bill  is 
sufficient  to  include  all  the  notes  intended  to  be  secured 
by  the  mortgage  may,  perhaps,  admit  of  doubt.  But  the 
bill  does  expressly  charge  that  Hunt,  the  mortgagee,  did 
assign  to  the  complainant  the  said  mortgage,  and  the 
notes  therein  mentioned,  with  full  power  to  collect  the  same. 
It  avers,  also,  that  these  notes  remain  due  and  unpaid. 
Whether,  therefore,  the  averment  of  transfer  includes  all 
the  notes  intended  to  be  secured  by  the  mortgage,  and  now 
claimed  to  be  due  to  the  complainant,  is  immaterial  to  the 
present  inquiry. 

It  is  further  objected  that  the  bill  is  multifarious  j  that 
there  is  a  misjoinder  of  causes  of  action  ;  that  the  proper 
parties  are  not  all  before  the  court.  These  and  other 
objections  of  a  like  technical  nature  have  been  made  the 
subject  of  demurrer,  and  will  be  considered  upon  the 
argument  of  the  demurrer.  No  opinion  is  now  intended 
to  be  expressed  in  regard  to  them.  If  the  bill  is  defective 
in  these  particulars  it  may  be  amended.  If  there  is  equity 
in  the  bill  they  constitute  no  ground  for  dissolving  the 
injunction. 

The  injunction  must  nevertheless  be  modified.  It  is 
too  broad.  It  not  only  enjoins  the  defendant  from  selling, 
disposing  of,  or  carrying  away  any  of  the  mortgaged 
property,  but  also  from  intermeddling  with  the  property, 
and  from  confessing  any  judgment  to  prefer  other  credi- 
tors over  the  complainant.  From  the  very  nature  of  the 
property  mortgaged,  it  consisting  in  part  of  the  defend- 
ant's household  furniture,  stock  and  farming  utensils, 
some  degree  of  intermeddling  with  the  property  is  una- 
voidable. The  defendant  has  a  right  to  confess  judgments  to 
his  creditors.  If  the  complainant's  mortgage  is  valid,  such 
judgments  cannot  affect  his  rights.  The  injunction  must  be 
modified  accordingly.  The  motion  to  dissolve  is  denied, 
without  costs. 

CITED  in  Freeman  v.  Freeman,  2  0.  E.  Or.  47. 


MAY  TERM,  1861.  376 

Executors  of  Condict  v.  King. 


THE  EXECUTORS  OP  EDWARD  "W.  CONDICT  vs.  ESTHER  A 
KING  and  others. 

1.  The  expression  in  a  will,  "  dying  without  lawful  issue,"  under  a 
well-settled  rule  of  law,  imported  an  indefinite  failure  of  issue. 

2.  Personal  property  could  not  be  limited  ove'r  on  so  remote  a  contin- 
gency, and  consequently  under  such  a  gift  of  a  personal  chattel,  the  legatee 
took  the  absolute  property. 

3.  But,  by  the  New  Jersey  statute  of  March   12th,  1851,  the  words 
"  dying  without  issue,"  and  similar  expressions,  are  made  to  denote  a  defi- 
nite failure  of  issue,  so  that  the  will  of  a  person  dying  since  that  act  went 
into  effect,  thus  limiting  personal  property,  will  pass  to  the  legatee  only  a 
defensible  interest,  which  will  cease  upon  his  dying  without  leaving  issue 
at  his  death. 

4.  Where  one  legacy  is  given  as  a  mere  substitute  for  another,  the  sub- 
stituted gift  is  subject  to  the  incidents  of  the  original  gift,  although  not  so 
expressed  in  the  testamentary  instrument. 

5.  On  bills  of  interpleader  the  court  disposes  of  the  questions  arising 
in  various  modes,  according  to  the  nature  of  the  question  and  the  manner 
in  which  it  is  brought  before  the  court. 

6.  If,  at  the  hearing,  the  question  between  the  defendants  is  ripe  for  de- 
cision, the  court  will  decide  it,  and  pronounce  a  final  decree. 


Dalrimple,  for  complainants. 

Vanatta,  Bradley,  and  Williamson,  for  defendants. 

THE  CHANCELLOR.  The  controversy  in  this  case  arises 
upon  the  true  construction  of  the  will  of  Edward  Condict. 
By  the  third  clause  of  his  will,  the  testator  having  devised 
to  his  grandson,  Edward  \V.  Condict,  certain  real  estate, 
directs  as  follows  :  tf  In  the  event  of  the  death  of  my  grand- 
son without  lawful  issue,  it  is  my  will  that  that  part  of  my 
estate  hereinbefore  devised  to  him,  and  also  that  part  of  my 
estate  to  which  he  may  be  entitled  as  a  residuary  legatee,  be 
divided  between  my  two  daughters,  Phebe  and  Mary  Ann, 
their  heirs  or  assigns."  By  the  residuary  clause  of  his  will, 
the  testator  bequeathed  to  his  grandson  "  the  one-tenth  of  the 
residue  of  his  estate,  to  be  paid  to  him  or  his  guardian." 


376  CASES  IN  CHANCERY. 

Executors  of  Condict  v.  King. 

As  the  law  stood  prior  to  recent  statutory  enactments, 
by  the  provisions  of  this  will,  the  legatee  took  an  estate 
tail  in  the  land  and  an  absolute  interest  in  the  personal 
property.  By  well-settled  rules  of  construction,  "  dying 
without  lawful  issue"  was  construed  to  mean  an  indefi- 
nite failure  of  issue — not  a  failure  of  issue  at  the  death  of 
the  first  taker,  but  at  any  future  period,  however  remote. 
Such  limitation  over  created  an  estate  tail  in  the  devisee  in 
real  estate.  But  because  the  law  would  not  permit  personal 
property  to  be  entailed,  nor  to  be  limited  over  upon  so  re- 
mote a  contingency,  under  such  a  gift  of  personal  chattels, 
the  legatee  took  an  absolute  property.  2  Kent's  Com.  354 ; 
2  Roper  on  Leg.  1522. 

By  the  act  of  March  12th,  1851,  (Nix.  Dig.  877,  §  27,)  it 
was  enacted  that,  "  in  any  devise  or  bequest  of  real  or 
personal  estate  in  the  will  of  any  person  dying  after  this  act 
shall  take  effect,  the  words  '  die  without  issue/  or  '  di«r 
without  lawful  issue/  or  '  have  no  issue/  or  any  othei 
words  which  may  import  a  want  or  failure  of  issue  of  any 
person  in  his  lifetime,  or  at  his  death,  or  an  indefinite 
failure  of  his  issue,  shall  be  construed  to  mean  a  want 
or  failure  of  issue  in  the  lifetime  or  at  the  death  of  such 
person,  and  not  an  indefinite  failure  of  issue,  unless  a 
contrary  intention  shall  otherwise  appear  by  the  will." 
Under  the  rule  of  construction  thus  established,  the  will 
gave  to  the  son  of  the  testator  an  estate  in  fee  in  the  land, 
liable  to  be  defeated  upon  his  death  without  issue,  with 
an  executory  devise  over  in  fee  to  the  daughters  of  the 
testator. 

This  rule  of  construction,  although  it  changed  the 
estate  in  the  laud  devised  to  the  son  of  the  testator  from 
an  estate  tail  to  a  defeasible  estate  in  fee,  in  no  wise 
affected  the  interest  of  the  daughters  in  the  real  estate. 
Upon  either  construction,  upon  the  death  of  the  first 
devisee  without  lawful  issue,  the  real  estate  went  to  the 
daughters  in  fee.  But  its  effect  upon  the  disposition  of 
the  personal  estate  was  to  change  the  absolute  gift  of  the 


MAY  TERM,  1861.  377 

Executors  of  Condict  v.  King. 

property  to  the  grandson  into  a  gift  of  qualified  interest, 
which  became  absolute  only  upon  his  leaving  issue  at  the 
time  of  his  death.  He  held,  during  his  life,  only  a  defeasi- 
ble interest  in  the  personal  property,  which,  upon  the  con- 
tingency of  his  dying  without  issue,  vested  in  the  daughters 
of  the  testator. 

Such  limitation  over,  of  an  executory  interest  in  personal 
estate,  is  clearly  valid,  2  Kent's  Com.  352. 

This  must  be  the  construction  of  the  testamentary  disposi- 
tion under  the  act  of  1851,  unless  a  contrary  intention  appears 
by  the  will. 

The  fact  that  the  will  was  executed  before  the  act  took 
effect,  cannot  alter  its  construction.  If  that  were  to  ba  the 
test,  the  act  itself  would  have  applied  the  statutory  rule  of 
construction  only  to  wills  that  were  executed  after  the  act  took 
effect,  whereas,  by  its  terras,  it  applies  to  all  wills  where  the 
testator  dies  after  the  act  took  effect. 

It  does,  indeed,  seem  to  be  a  remarkable  rule  of  construc- 
tion, that  determines  the  meaning  of  the  testator  to  be  the 
very  reverse  of  the  legal  effect  of  his  language  at  the  time  the 
will  was  written.  If  the  testator  had  died  the  next  day  or 
the  next  year  after  the  will  was  made,  it  is  clear  that,  by 
the  rule  of  law  as  then  settled,  the  grandson  would  have 
taken  the  personal  property  absolutely,  and  the  limitation 
over  would  have  been  void.  If  the  testator,  when  he 
executed  the  will,  had  inquired  of  the  scrivener  or 
the  counsel  who  drew  it,  he  must  have  been  told 
that  the  legatee  took  the  personal  property  absolutely. 
And,  although  there  was  a  re-publication  of  the  will, 
by  a  codicil,  after  the  act  went  into  effect,  it  is  obvious 
to  observe  that  the  testator  re-published  it  according 
to  its  legal  effect,  as  he  understood  it,  at  the  time  it  was 
executed.  It  cannot  be  denied,  therefore,  that  it  is  a  reas- 
onable inference,  not  only  that  the  testator  understood  the 
legal  effect  of  the  terms  used  by  him,  but  that  his  intention 
was  precisely  in  accordance  with  the  legal  effect  of  the  terms 


378  CASES  IN  CHANCERY. 

Executors  of  Condict  v.  King. 

he  employed,  viz.,  to  give  the  personal  estate  absolutely  to 
his  grandson. 

But,  on  the  other  hand,  it  must  be  borne  in  mind  that  the 
legislature  altered  the  rule  of  construction  formerly  adopted 
by  the  courts,  upon  the  very  ground  that,  as  applied  to  the 
terms  used  in  this  will,  it  was  an  artificial  and  technical  rule, 
which  defeated  the  real  intention  of  the  testator.  They  there- 
fore declared  that,  in  the  construction  of  all  wills  in  future, 
except  where  rights  had  already  become  vested  by  the  death 
of  the  testator,  a  different  rule  of  construction  should  prevail. 
Unless,  therefore,  a  contrary  intention  shall  otherwise  appear 
by  the  will,  the  court  is  clearly  bound  to  adopt  the  construc- 
tion provided  by  the  statute.  I 

It  is  urged  that  the  fact  that  the  testator,  by  the  will, 
directed  the  share  of  the  residue  bequeathed  to  the  legatee 
"  to  be  paid  to  him  or  his  lawfully  appointed  guardian,"  indi- 
cates an  intention  to  give  him  the  absolute  property.  But 
the  legatee  was  clearly  entitled  to  the  use  of  the  property  for 
his  life,  and  the  executor  would  have  been  bound  to  pay  it  to 
him  without  such  direction.  The  design  of  the  instruction 
may  well  have  been  to  relieve  the  executor  from  all  doubts 
as  to  the  propriety  of  placing  the  money  in  the  hands  of  the 
legatee,  and  from  all  responsibility  for  so  doing.  It  certainly 
did  not  change  the  legal  effect  of  the  will,  or  the  rights  of 
the  legatee  under  it. 

Again,  it  is  urged  that  the  provisions  of  the  eleventh  clause 
of  the  will,  by  which,  in  a  certain  contingency,  the  expenses 
of  educating  the  legatee,  and  bringing  him  up  "to  maturity," 
shall  be  paid  out  of  that  part  of  the  testator's  estate  given 
and  devised  to  the  legatee,  indicates  an  intention  to  give  him 
the  property  absolutely.  It  is  said  that  this  gives  the  legatee 
the  use  and  disposal  of  the  property  for  the  purposes  of  hia 
bringing  up  and  education,  which  necessarily  involves  the 
right  of  absolute  ownership,  and  defeats  the  gift  over  to  the 
testator's  daughters. 

The  eleventh  clause  of  the  will  recites  that  the  legatee, 


MAY  TERM,  1861.  379 

Executors  of  Condict  v.  King. 

the  testator's  grandson,  since  the  death  of  his  father,  lived 
with  his  maternal  grandfather,  Jason  King,  for  which, 
under  an  agreement  between  Mr.  King  and  the  testator, 
Mr.  King  was  to  receive  and  had  received  the  rents  and 
profits  of  a  house  and  garden  belonging  to  the  testator; 
and  it  is  therefore  directed  that,  should  Mr.  King  demand 
anything  more  as  a  compensation  for  his  expenses  in 
keeping  and  educating  his  said  grandson,  such  additional 
expense  or  compensation,  together  with  the  expense  of  bring- 
ing him  up  until  he  arrives  at  maturity,  should  be  paid  out 
of  that  part  of  the  testator's  estate  given  and  devised  to  his 
grandson. 

The  effect  of  this  clause  is  to  diminish,  on  the  occur- 
ring of  a  certain  contingency,  the  amount  of  the  legacy, 
not  to  alter  the  character  of  the  bequest  or  to  control  the 
use  of  it  in  the  hands  of  the  legatee.  It  is  tantamount  to 
saying,  if  a  demand  is  made  upon  me  or  upon  my  estate 
to  pay  any  portion  of  educating  or  bringing  up  the  legatee 
till  he  arrives  at  maturity,  such  sum  shall  be  deducted  out 
of  his  portion  of  my  estate.  No  such  demand  was  ever 
made. 

The  utmost  effect  that  can  be  given  to  this  clause  is  to 
diminish  the  amount  given  to  the  grandson,  and  limited 
over  to  the  daughters  of  the  testator,  to  the  extent  of  the 
expenses  incurred  by  him  in  his  education.  This  will  be 
in  accordance  with  the  intention  and  wish  of  the  testator. 
The  primary  purpose  of  the  provision  clearly  was  to 
guard  his  estate  from  any  claim  for  the  maintenance  or 
education  of  his  grandson  beyond  the  amount  already 
contributed  and  that  given  in  the  will.  He  appears  to 
have  supposed  that  he  had  already  contributed  to  that 
kbject  as  far  as  he  had  agreed,  or  could  fairly  be  required 
to  do,  and  to  have  expected  that  whatever  more  might  be 
required  for  that  purpose  would  be  contributed  by  Mr. 
King.  As  the  paternal  grandfather,  he  was  under  no 
higher  obligation  to  maintain  the  legatee  than  his  mater- 
nal grandfather  was.  The  legacies,  therefore,  were  not 


380  CASES  IN  CHANCERY. 

Executors  of  Condict  v.  King. 

raade  for  the  purpose  of  educating  his  grandson.  At  the 
same  time  there  was  a  manifest  expectation  and  purpose 
on  the  part  of  the  testator  that  his  grandson  should  be 
educated,  and,  so  far  as  the  expense  was  not  borne  by 
his  maternal  grandfather,  that  it  should  be  deducted  from 
the  property  given  by  the  will.  The  testator,  as  a  man 
of  character  and  property,  must  have  contemplated  that 
the  sole  representative  of  his  only  son  should  be  educated 
according  to  his  station  and  circumstances  in  life.  The 
fund  is  charged  not  only  with  the  compensation  tha^ 
should  be  demanded  by  Mr.  King,  but  also  with  th&  ex- 
pense of  bringing  him  up  until  he  arrives  at  maturity.  Ifc 
would  be  an  unworthy  reflection  upon  the  memory  of  the 
testator  to  hold  that  by  "  bringing  up"  his  grandson,  he 
simply  intended  he  should  be  clothed  and  fed.  He  doubt- 
less intended  that  his  bringing  up  should  include  an  edu- 
cation according  to  his  inclination  and  capacities,  and  suited 
to  his  situation  and  circumstances  in  life.  Nor  could  he 
have  intended  to  limit  this  provision  to  the  period  of  the 
minority  of  his  grandson,  and  to  have  him  turned  upon  the 
world  at  twenty-one  with  his  education  half  finished  and 
his  mind  immature.  That  is  neither  the  necessary  import 
nor  the  fair  construction  of  the  testator's  language.  The 
term  "maturity"  is  not  synonymous  with  legal  majority. 
As  used  by  the  testator,  it  may  well  be  held  to  import  ma- 
turity of  mind  and  character,  the  combined  result  of  age 
and  education.  The  money  actually  expended  by  Edward 
"W.  Condict  in  his  education,  either  before  or  after  he 
attained  the  age  of  twenty-one,  should  be  deducted  from 
the  amount  for  which  his  estate  is  liable  to  the  legatees 
under  his  grandfather's  will.  In  regard  to  the  amount 
expended  by  Mr.  King  there  is  more  difficulty.  No  de- 
mand of  the  re-payment  of  that  money  appears  to  have 
been  made,  either  by  Mr.  King  or  by  his  legal  represen- 
tatives, after  his  death.  Mr.  King  died  in  1853.  The 
legatee  attained  his  majority  on  the  16th  of  January,  1855. 
His  grandfather,  Edward  Condict,  died  on  the  first  of 


MAY  TERM,  1861.  381 

Executors  of  Condict  v.  King. 

December  following.  Upon  the  evidence  now  before  the 
court  there  is  no  claim,  legal  or  equitable,  upon  the 
estate  of  the  testator  for  the  re-payment  of  the  moneys 
advanced  by  Mr.  King  or  his  estate  for  the  support  or 
education  of  the  legatee.  Nor  do  I  see  any  ground  upon 
which  such  claim  can  be  maintained,  either  against  the 
estate  of  Edward  Condict  or  his  grandson,  Edward  W. 
Condict.  If  this  money  was  never  claimed  by  Mr.  King 
or  his  estate  from  Edward  W.  Condict  it  must  be  pre- 
sumed to  have  been  voluntarily  advanced  by  him  for  the 
benefit  of  his  grandson,  and  there  can  be  no  equity  in 
now  charging  it  upon  his  estate  for  the  mere  purpose  of 
diminishing  the  fund  in  his  hands  belonging  to  the 
legatees  under  the  will  of  Edward  Condict.  If  the  exist- 
ence of  such  claim  can  be  established,  the  defendant,  Miss 
King,  will  be  permitted  to  offer  evidence  for  that  purpose  ; 
but  if  no  such  evidence  eiists,  this  part  of  her  claim  must  be 
rejected. 

One  of  the  lots  devised  by  the  will  of  Edward  Condict 
to  his  grandson,  Edrard  W.  Condict,  was  afterwards  sold 
by  the  testator,  aud  a  bond  and  mortgage  taken  for  the 
purchase  money.  By  the  third  codicil  to  his  will,  bear- 
ing date  in  1854,  Jhis  bond  and  mortgage  were  specifically 
bequeathed  to  the  devisee  in  lieu  of  the  land  so  sold, 
without  any  limitation  over  to  the  testator's  daughters. 
The  bond  a0.1  mortgage  are  given  as  a  mere  substitution 
for  the  land.  The  fact  that  there  was  an  ademption  of  the 
gift  by  a  tale  of  the  land  before  the  date  of  the  codicil  does 
not  change  the  substance  of  the  thing.  He  gave  the  bond 
and  mortgage  as  a  substitute  for  the  land  which  was  devised, 
and  subsequently  sold  by  the  testator. 

Where  one  legacy  is  given  as  a  mere  substitute  for 
another,  the  substituted  gift  is  subject  to  the  incidents  of 
the  original,  although  not  so  expressed  in  the  testamentary 
instrument.  2  Wms.  on  Executors  1112;  Shaftesbury  v. 
Marlborough,  1  Simons  237 ;  Chatteiis  v.  Young,  2  llussell 
183;  1  Jarman  170. 

VOL.  ii.  2  A 


382  CASES  IN  CHANCERY. 

Executors  of  Condict  v.  King. 

The  principle  cannot  be  universally  applicable  where  a 
legacy  is  given  as  a  substitute  for  a  devise  of  real  estate. 
Real  and  personal  estate,  by  the  terms  of  the  will,  may 
be  given  subject  to  different  incidents.  But  in  this  case 
the  real  and  personal  estate  are  both  limited  over  in  the 
same  way.  The  codicil  contains  an  express  re-publication 
of  the  original  will.  It  must  have  been  the  intention  of 
the  testator  that  the  bond  and  mortgage  should  be  limited 
over  to  his  daughter  in  the  same  manner  as  the  land  for 
which  it  was  substituted.  The  estate  of  Edward  W.  Condict 
must  account  to  the  daughters  of  the  testator  for  the  value  of 
the  mortgage. 

The  price  for  which  the  mortgaged  premises  were  sold, 
less  the  costs  of  the  foreclosure  and  sale,  would  be  prima 
facie  evidence  of  its  true  value,  though  not  conclusive. 
In  the  absence  of  fraud  or  collusion,  Edward  W.  Condict 
or  his  estate  would  be  entitled  in  equity  to  hold  the 
property  at  the  price  at  which  it  was  purchased  by  him, 
though  the  deed  was  not  actually  delivered.  The  con- 
veyance by  the  sheriff  to  Miss  King  of  property  struck  off 
and  sold  to  Edward  W.  Condict  wa-s  illegal,  and  vested  no 
valid  title  in  the  grantee.  She  can  claim  nothing  by  virtue 
of  that  deed. 

The  eatate  of  Edward  W.  Coudict  must  account  for  the 
price  at  which  the  laud  was  sold,  or  if  the  sale  was  made 
by  fraud  or  collusion,  for  the  real  value  of  the  premises 
at  the  time  of  the  sale  by  the  sheriff,  less  the  costs  and  ex- 
penses. The  money  advanced  by  Miss  King  to  the  sheriff, 
or  otherwise  on  account  of  the  sale,  must  be  refunded,  and  the 
net  value  of  the  mortgage  accounted  for  to  the  daughters  of 
the  testator,  Edward  Condict. 

The  executor  of  Edward  W.  Condict  is  not  bound  to  re- 
turn the  specific  articles  purchased  with  the  money 
received  for  the  estate.  Nor  is  he  bound  to  account  for 
the  rents  of  the  real  estate  or  the  income  and  profits  of 
the  personal  estate  accruing  between  the  death  of  his 
grandfather  (or  as  to  the  residue  a  year  afterward)  and  his 


MAY  TERM,  1861.  383 

Executors  of  Condict  v.  King. 

own  death.  The  true  measure  of  accountability  is  the  value 
of  the  personal  property  received  by  Edward  "W.  Condict 
under  the  bequests  in  the  will.  As  to  the  residue,  that  was 
converted  into  money,  and  the  precise  amount  is  ascertained. 
It  was  properly  paid  over  to  him  by  the  executor,  without 
requiring  security.  Where  a  legacy' is  given  generally,  sub- 
ject to  a  limitation  over  upon  a  subsequent  event,  the  divest- 
ing contingency  will  not  prevent  the  legatee  from  receiving 
his  legacy  at  the  end  of  the  year  from  the  testator's  death ; 
and  he  is  not  bound  to  give  security  for  the  re-payment  of 
the  money  in  case  the  event  should  happen.  Griffiths  v. 
Smith,  1  Vesey,  Jr.,  97;  Fawkes  v.  Gray,  18  Vesey  131;  2 
Williams  on  Ex'rs  1192;  Homer  v.  Shelton,  2  J/ete.'194; 
Fiske  v.  Cobb,  6  Gray  144. 

As  to  the  mode  of  proceedings,  or  the  form  of  the  decree, 
there  can  be  no  difficulty.  The  court  disposes  of  the  ques- 
tions arising  upon  bills  of  interpleader  in  various  modes,  ac- 
cording to  the  nature  of  the  question  and  the  manner  in  which 
it  is  brought  before  the  court.  If,  at  the  hearing,  the  question 
between  the  defendants  is  ripe  for  decision,  the  court  decides 
it  and  pronounces  a  final  decree.  This  course  was  adopted  in 
the  greatly  contested  case  of  Hendrickson  v.  Decow,  Saxton  593, 
and  in  Rowe  v.  Adm'rs  of  Hoagland,  3  HalsL  Ch.  R.  139. 

If,  at  the  hearing,  the  case  is  not  ripe  for  decision,  the 
court  directs  an  action,  or  an  issue,  or  a  reference  to  a  master, 
as  may  be  beat  suited  to  the  nature  of  the  case.  Angell  v. 
Hadden,  16  Vesey  203  ;  Beaton's  Decrees  340  ;  City  Bank  v. 
Bangs,  2  Paige  570 ;  3  Darnell's  Ch.  Pr.  1765. 

If  the  amount  to  which,  upon  the  foregoing  principles,  the 
legatees  of  Edward  Condict  are  entitled  out  of  the  estate  of 
Edward  W.  Condict  can  be  agreed  upon,  there  will  be  no 
necessity  for  an  order  of  reference,  but  a  final  decree  may  be 
at  once  made.  If  this  amount  cannot  be  thus  ascertained, 
there  must  be  a  reference  to  a  master,  with  instructions. 

CITED  in  Ex'rs  of  Rowe  v.  White,  1  C.  E.  Or.  417  ;  Drummond  v.  Drum- 
mond,  11  C.  E.  Or.  237. 


384  CASES  IN  CHANCERY. 


Rockwell  v.  Morgan. 


ROCKWELL  and  wife  vs.  MORGAN  and  others. 

1.  In  proceedings  for  dower,  if  the  defendant  deny  the  complainant's 
right  to  dower  the  question  must  be  tried  at  law. 

2.  But  the  court  may  inquire  of  what  estate  the  husband  died  seized, 
and  this  involves  an  inquiry  into  the  nature  and  character  of  the  hus- 
band's right  to  the  estate. 

3.  A  bill  setting  up  an  equitable  title  to  the  land   in  the  widow,  and 
praying  that  if  that  claim  shall  fail,  that  dower  may  be  assigned,  is  not 
multifarious. 

4.  An  objection  to  a  bill,  on  the  ground  of  mnltifariousnes.s,  taken  at 
the  hearing,  is  not  much  favored. 

5.  Where  the  guardian  of  a  female  infant  wrongfully  converted  the 
personal  estate  in  his  hands  into  lands,  placing  the  title  in  a  third  person, 
who  afterwards  conveyed  the  same  to  the  husband  of  the  infant,  upon  the 
death  of  the  husband  the  widow  cannot  claim  an  equitable  title  to  such 
lands. 


Rickey  and  Beasley,  for  complainants. 
Vroom,  for  defendants. 

THE  CHANCELLOR.  The  objection  is  raised  in  limine  that 
the  complainants'  bill  is  bad  for  multifariousness.  The  pre- 
cise objection  raised  by  the  answer  is,  that  "  by  the  practice 
of  this  court  the  complainant  cannot,  in  a  bill  for  dower  and 
account,  call  in  question  or  try  the  title  of  the  defendant  as 
heir-at-law  or  devisee,  or  pray  any  relief  in  that  respect." 
Is  the  objection  valid  in  either  form  ? 

This  court  clearly  cannot  try  or  decide  a  question  of  legal 
title,  nor  decide  whether  a  widow  is  legally  entitled  to  dower 
when  the  legal  right  is  denied.  If  the  defendants  deny  the 
complainants'  right  to  dower,  the  question  must  be  tried  at 
law.  Curtis  v.  Curtis,  2  Brown's  Ch.  R.  632 ;  D'Arcy  v. 
Blake,  2  Soh.  &  Lef.  390;  2  Daniell's  Ch.  Pr.  1343. 

But  the  court  not  only  may,  but  must  of  necessity  in- 
quire of  what  estate  the  husband  died  seized,  and  this 


MAY  TERM,  1861.  385 

Rockwell  T.  Morgan. 

involves  an  inquiry  into  the  nature  and  character  of  the 
husband's  right  to  the  estate.  In  Curtis  v.  Curtis  there 
had  been  a  decree  directing  that  an  account  should  be 
taken  of  the  rents  and  profits  of  the  freehold  estate  of 
Paul  Downton  Curtis.  The  court  subsequently  said,  there 
seems  to  have  been  a  slip  in  the  former  decree,  and 
that  the  infant  must  now  have  an  inquiry  as  to  what 
estates  Paul  Downton  Curtis  died  seized  of.  In  this  case 
there  is  no  denial  of  the  husband's  legal  seizin  of  the  land 
in  question.'  The  bill  states  the  fact,  but  alleges  that  the 
equitable  title  is  in  the  wife ;  that  the  land  was  purchased 
by  her  guardian  with  her  money;  that  he  stood  seized  to 
her  use,  and  that  in  breach  of  his  duty  as  trustee  he  con- 
veyed the  land  during  her  minority  to  her  husband.  She 
therefore  claims  to  be  entitled  in  equity  to  the  land,  and 
asks  an  account  of  all  the  rents  and  profits.  But  if  that 
claim  is  not  well  founded,  she  then  asks  that  she  may 
have  her  dower  in  that  land.  These  are  certainly  not 
distinct  and  independent  claims.  It  presents  the  ordinary 
case  of  a  bill  filed  with  a  double  aspect.  The  bill  found 
in  Mr.  Van  Huytheysen's  valuable  collection  of  prece- 
dents, "Equity  Draftsman,"  175,  claims  not  only  dower 
but  an  annuity  under  the  husband's  will,  and  is  filed 
against  the  executor  as  well  as  against  heirs  and  devisees. 
The  equitable  claim  must  be  disposed  of  before  the  title 
to  dower  can  be  settled.  It  must  be  disposed  of  in  this 
court,  and  the  only  question  would  seem  to  be  whether 
she  was  bound  to  file  a  separate  bill  to  have  the  question 
litigated  before  filing  her  bill  for  dower.  No  demurrer 
was  interposed.  The  evidence  has  been  taken,  and  the 
rights  of  the  parties  fully  investigated.  No  embarrass- 
ment has  resulted  from  this  course,  and  no  possible 
advantage  could  result  'from  dismissing  the  bill,  upon  a 
mere  technical  objection,  at  this  stage  of  the  cause.  An 
objection  to  a  bill  on  the  ground  of  multifariousness  fre- 
quently resolves  itself  into  a  question  of  expediency.  On 
the  one  hand,  the  bill  should  be  sufficiently  extensive  to 


386  CASES  IN  CHANCERY. 

Kockwell  v.  Morgan. 

answer  the  purposes  of  complete  justice;  on  the  other 
hand,  distinct  and  independent  matters  are  not  to  be 
united  in  the  same  bill.  The  matters  in  this  bill  are  not 
so  distinct  and  independent  as  technically  to  constitute 
the  vice  of  multifariousness.  The  objection  at  this  late 
stage  of. a  cause  is  not  favored,  even  if,  technically,  a  de- 
murrer might  have  been  sustained.  Hays  v.  Doane,  3 
Stockt.  84  ;  Whitney  v.  Whitney,  5  Dana  327. 

The  strict  rule  is,  that  the  objection  must  be  raised  by 
demurrer,  and  cannot  be  by  the  defendant  at  the  hearing; 
though  the  court  may,  sua  sponte,  take  the  objection  at  the 
hearing.  Story's  Eq.  PL,  §  271,  note  5,  and  cases  there 
cited. 

The  material  question  in  the  cause  is,  whether  the 
complainant  is  entitled  in  equity  to  an  account  of  all  the 
profits  of  the  real  estate  in  the  city  of  Trenton  of  which 
the  husband  died  seized.  The  leading  facts  upon  which 
the  question  depends  are  not  controverted.  The  com- 
plainant, Mrs.  Rockwell,  while  a  minor,  became  entitled, 
under  the  provisions  of  her  father's  will,  to  personal  pro- 
perty amounting  to  $5000.  Her  mother  became  her 
guardian,  and  placed  or  left  the  complainant's  funds  in 
the  hands  of  her  brother,  Jefferson  Blackwell,  who  was 
acting  executor  of  the  father's  will.  A  sister  of  the  com- 
plainant, who  had  attained  her  majority  and  was  married 
to  John  A.  Weart,  was  entitled  to  the  like  sum  of  $5000. 
On  the  18th  of  January,  1830,  the  money  of  the  com- 
plainant, by  the  assent  and  direction  of  the  guardian,  was 
vested  jointly  with  that  of  Mrs.  Weart,  in  the  purchase  of 
real  estate  in  the  city  of  Trenton,  and  a  deed  taken  in  the 
name  of  John  A.  Weart  and  Jefferson  Blackwell.  On 
the  10th  of  June,  1832,  the  complainant  intermarried 
with  Charles  Morgan.  On  the  15th  of  April,  1834,  the 
complainant  still  being  a  minor,  Jefferson  Blackwell,  by 
deed  of  bargain  and  sale,  conveyed  the  property  to  Charles 
Morgan,  the  complainant's  husband,  for  the  nominal  con- 
sideration of  one  dollar. 


MAY  TERM,  1861.  387 

Rockwell  v.  Morgan. 

The  property  in  the  hands  of  the  guardian  was  personal 
estate.  It  was  bequeathed  as  such  to  the  complainant, 
and  directed  to  be  paid  over  by  the  executor  as  personal 
property.  It  was,  without  authority  of  law,  converted  into 
real  estate,  and  the  deed  therefor  taken  in  the  name  of  the 
executor. 

In  the  eye  of  the  law  it  continued  personal  estate.  The 
executor  was  bound  to  account  for  it  as  such.  Upon  the 
marriage,  the  husband  was  entitled  to  recover  it  and  re- 
duce it  into  his  possession  as  personal  property.  That  the 
husband  chose  to  accept  a  deed  for  land  in  which  his 
wife's  money  had  been  invested  by  the  guardian  without 
authority  of  law,  did  not  deprive  him  of  his  legal  rights 
over  the  fund  as  the  personal  property  of  his  wife. 
He  had  an  unquestionable  right  to  recover  the  money 
from  the  guardian  as  personalty,  and  to  invest  it  the 
next  moment  in  real  estate  in  his  own  name.  In  effect 
that  was  precisely  what  he  did.  He  accepted  the  land 
in  lieu  of  the  money.  Neither  the  unauthorized  con- 
version of  the  personal  estate  of  the  ward  into  realty, 
nor  the  acceptance  of  the  land  by  the  husband  in  lieu  of  the 
money  to  which  he  was  entitled,  can  essentially  alter  the 
character  of  the  transaction. 

The  argument  in  favor  of  the  right  of  the  complainant 
is,  that  the  money  of  the  ward  having  been  used  in  the 
purchase  of  the  real  estate,  there  was  a  resulting  trust  in 
favor  of  the  minor,  and  equity  would  regard  it  as  her 
laud,  though  the  title  was  taken  in  the  name  of  another; 
that  the  personal  estate  of  the  ward  having  been  con- 
verted into  real  estate,  such  conversion  would  be  legal 
with  the  assent  of  the  ward  upon  her  attaining  her  ma- 
jority, as  she  might  then  elect  to  take  the  land  or  the 
money ;  that  after  the  marriage,  the  ward  continuing  a 
minor,  the  right  of  election  devolved  on  the  husband,  and 
he  was  authorized  to  assent  to  the  conversion  j  that  by 
accepting  the  deed  for  the  land  he  did  in  fact  assent  to 
the  conversion  aud  elect  to  take  the  money  as  real  estate. 


388  CASES  IN  CHANCERY. 

Eockwell  v.  Morgan. 

The  reasoning,  though  plausible,  is  not  sound.  As  against 
the  purchaser,  who  used  the  minor's  money  in  the  pur- 
chase of  the  laud,  and  took  the  title  in  his  own  name, 
equity  would  regard  the  land  as  belonging  to  the  minor, 
but  not  as  against  the  husband.  The  fact  that  the  fund 
was  thus  invested  in  land  could  not  interfere  wi.th  the 
rights  of  the  husband.  He  had  a  right  to  recover  the 
money — to  reduce  it  into  possession  as  personal  properly. 
It  may  be  questioned  whether  he  was  bound  even  to 
make  an  equitable  provision  for  his  wife  out  of  the  fund, 
for  it  might  have  been  recovered  at  law  without  the  aid 
of  a  court  of  equity.  2  Story's  Eq.  Jar.,  §  1403;  2  Kent's 
Com.  139. 

Had  the  husband  accepted  from  the  guardian,  in  satis- 
faction of  his  claim,  a  deed  made  to  his  wife,  his  assent  to 
the  conversion  and  his  election  to  take  the  property  as 
land  might  fairly  be  implied.  But  no  such  assent  or 
election  can  be  implied  from  the  fact  that  he  accepted  from 
the  guardian  or  debtor  of  his  wife  a  deed  to  himself  in  satis- 
faction of  his  claim. 

There  is  no  suggestion  of  any  fraud  or  unfairness  on 
the  part  of  the  husband.  It  was  not  only  a  lawful,  but  a 
natural  and  ordinary  transaction.  It  is  precisely  what 
was  done  with  the  share  of  the  sister  of  the  complainant, 
which  was  invested  in  the  purchase  of  an  undivided 
moiety  of  the  same  land  at  the  same  time.  The  deed  for 
the  sister's  share  of  the  land,  though  purchased  with  her 
money,  was  made  to  her  husband,  and  not  to  her.  The 
title  for  the  complainant's  share  was  originally  taken  in 
her  brother's  name,  and  after  her  marriage  transferred  to 
her  husband. .  And  the  two  husbands  continued  for 
many  years,  and  until  the  death  of  Weart,  to  stand  seized 
of  the  land  thus  purchased,  as  tenants  in  common  in  their 
own  names,  without  an  intimation  that  the  investment 
was  unauthorized  or  inequitable.  Both  the  complainant 
and  her  mother,  who  was  her  guardian,  admit  that  they 
knew  that  the  title  was  in  the  husband.  The  mother 


MAY  TERM,  1861.  389 

Rockwell  v.  Morgan. 

says  that  it  was  wrong,  though  she  raised  no  voice  against  it. 
The  complainant  says  she  yielded  to  it  because  her  husband 
desired  it.  In  fact,  though  it  may  now  be  felt  to  be  a  matter 
of  regret,  it  is  not  perceived  that  either  or  both  of  them  could 
have  prevented  it  otherwise  than  by  a  settlement  previous  to 
marriage  I  am  of  opinion  that  the  husband  rightfully  took 
title  to  the  land  in  his  own  name ;  that  he  took  it  as  personal 
estate,  without  any  assent  to  the  conversion  of  the  personal 
into  real  estate,  and  that  the  wife  has  no  equity  which  can  be 
enforced  as  against  the  legal  title  of  the  husband.  The  com- 
plainant is  entitled  to  her  dower  only  in  the  estate. 

Aside  from  the  question  of  strict  right,  it  is  a  considera- 
tion of  some  moment  that  this  arrangement  was  not  only 
acquiesced  in  by  the  complainant  for  twenty  years  during  the 
life  of  the  husband,  but  for  five  years  after  his  death,  she 
continued  to  recognize  her  husband's  title  to  the  land  as  per- 
fect, and  to  receive  her  thirds  from  its  income,  as  his  widow. 
Though  but  little  importance  is  ordinarily  attached  to  the 
silence  of  a  wife,  so  long  an  acquiescence  in  a  transaction, 
both  during  coverture  and  afterwards,  goes  far  to  sanction  a 
transaction  which  would  otherwise  have  been  of  doubtful 
validity. 

In  regard  to  the  real  estate  in  the  county  of  Middlesex, 
there  is  no  question  as  to  the  complainant's  right  to  dower. 
The  complainant  is  entitled  to  dower  in  the  whole  real 
estate  of  her  husband,  and  to  an  account  of  the  rents  and 
profits. 

The  widow  is  entitled  to  dower  in  the  clay  banks,  as  well  as 
in  any  other  part  of  the  inheritance.  Dower  is  assignable  in 
mines,  quarries,  and  in  whatever  is  part  of  or  appurtenant  to 
the  land  of  which  a  woman  hath  dower,  and  that  whether  it 
be  assignable  by  metes  and  bounds  or  not.  Stoughton  v. 
Leigh,  I  Taunt.  402;  9  Viner'sAb.  212,  "Dower,"  D. ;  Park 
on  Dower  115. 

The  only  question  that  can  arise,  will  be  in  regard  to 
the  mode  of  assignment,  whether  by  metes  and  bounds  or 


390  GASES  IN  CHANCERY. 

Stotesbury  v.  Vail. 

by  a  share  of  the  profits.  That  course  should  be  adopted 
which  will  be  most  favorable  to  the  widow,  and  which  will 
most  effectually  secure  the  enjoyment  of  her  right.  There 
can  be  no  difficulty  in  taking  an  account  of  the  profits.  It 
appears,  from  the  answer,  that  the  clay  banks  have  been 
worked  in  connection  with  the  farm,  and  the  profits  of  the 
clay  may  be  ascertained,  as  well  as  of  any  other  part  of  the 
property.  Working  the  banks  is  a  mere  mode  of  enjoyment. 
The  complainant  is  entitled  to  dower,  and  to  an  account  of 
the  rents  and  profits,  from  the  death  of  the  husband. 

CITED  in  Eeetfs  Etfrs  v.  Reed,  I  C.  E.  Or.  248 ;  Palmer  v.  Casperson,  2 
C.  E.  Or.  206. 


HENRY  H.  STOTESBURY  vs.  GEORGE  VAIL. 

1.  A  parol  surrender  of  demised  premises,  although  invalid  at  law,  by 
reason  of  the  statute  of  frauds,  will  be  sustained  in  equity  when  consum- 
mated by  a  delivery  of  the  counterpart  of  the  lease,  the  key  of  the  dwell- 
ing, and  the  possession  of  the  premises,  to  the  landlord. 

2.  In  such  case,  the  court  will  enjoin  the  collection  of  the  after-accruing 
rent. 

3.  When  the  ends  of  justice  require  it,  the  injunction  will  be  continued 
to  the  hearing. 

4.  If  the  defendant  is  absent  from  the  country,  his  oath  to  the  answer 
must  be  taken  under  a  commission. 

5.  Affidavits  annexed  to  an  answer  need  not  be  taken  on  notice,  nor  i» 
it  necessary  to  serve  copies,  unless  in  special  cases,  under  the  rules  of  the 
court.  

Chandler,  for  motion. 
Little,  contra. 

THE  CHANCELLOR.  The  injunction,  in  this  case,  issued 
to  restrain  the  defendant  from  proceeding  at  law  to  re- 
cover rent  upon  a  lease  made  by  the  defendant  to  the 
complainant.  The  material  charges  of  the  bill  are  that 
Vail  leased  to  Stotesbury  a  house,  garden,  and  pleasure 
grounds,  at  Speedwell,  for  four  years  from  the  first  of 


MAY  TERM,  1861.  391 

Stotesbury  v.  Vail. 

April,  1857,  at  a  yearly  rent  of  $500,  payable  quarterly; 
that  prior  to  the  first  of  April,  1859,  the  lessee  agreed, 
with  the  agent  of 'the  lessor,  to  surrender  the  premises 
on  that  day ;  that  the  counterpart  of  the  lease  held  by  the 
lessee  was,  together  with  the  key  of  the  house,  delivered  to 
a  relative  of  the  lessor,  and  the  possession  of  the  premises 
given  up  by  the  lessee  in  pursuance  of  the  agreement;  that 
the  premises  were  entered  upon  by  the  agent  of  the  lessor, 
repairs  made,  and  the  premises  leased  to  another  tenant. 
The  complainant  insists  that,  the  surrender  not  being  valid 
at  law,  he  is  entitled  in  equity  to  be  relieved  from  the  pay- 
ment from  and  after  the  1st  of  April,  1859,  when  the  pos- 
session of  the  premises  was  given  up  by  him  to  the  lessor. 
The  defendant,  having  answered  the  bill,  asks  a  dissolution 
of  the  injunction. 

One  of  the  grounds  of  defence  relied  upon  in  the 
answer  is,  that  the  bill  is  filed  in  violation  of  the  tenth 
section  of  the  act  for  the  prevention  of  frauds  and  perju- 
ries, with  the  intent  to  evade  the  provision  of  the  statute, 
and  to  deprive  the  defendant  of  his  rights  under  the  same. 
The  provision  of  the  statute  referred  to  is,  that  no  lease, 
estate,  interest,  or  term  of  years  shall  be  assigned,  granted  or 
surrendered,  unless  it  be  by  deed  or  note  in  writing.  Nix. 
Dig.  330,  §  10.  And  it  is  insisted  that,  inasmuch  as  no  sur- 
render in  writing  has  been  made,  a  court  of  equity  will  not 
sustain  the  validity  of  the  surrender,  and  thus  violate  the 
express  provision  of  the  statute. 

"  It  is  obvious,"  says  Mr.  Justice  Story,  "  that  courts  of 
equity  are  bound  as  much  as  courts  of  law  by  the  provisions 
of  this  statute,  and  therefore  are  not  at  liberty  to  disregard 
them."  They  interfere  in  cases  within  the  reach  of  the 
statute,  not  upon  any  notion  of  a  right  to  dispense  with  it, 
but  for  the  purpose  of  administering  equities  subservient  to 
its  objects  or  collateral  to  it  or  independent  of  it  1  Story's 
Eg.  Jur.,  §  754. 

Courts  of  equity  will  enforce  the  specific  performance 
of  a  contract  within  the  statute  where  the  parol  agree- 


392  CASES  IN  CHANCERY. 

Stotesbury  v.  Vail. 

raent  has  been  partly  carried  into  execution.  1  Fonb.  Eq., 
book  1,  ch.  3,  §  8 ;  2  Story's  Eq.  Jur.,  §  759 ;  Fry  on  Spec. 
Perform.,  §§  383,  388. 

The  distinct  ground  upon  which  courts  of  equity  in- 
terfere in  such  cases  is  to  prevent  the  perpetration  of  a 
fraud.  "Courts  of  equity,  in  dealing  with  the  entire 
subject  of  contracts  within  the  statute  of  frauds,  introduce  a 
principle  beyond  the  province  of  a  court  of  law  to  regard. 
Where,  upon  the  faith  of  a  verbal  contract  for  an  interest 
in  land,  a  party  has  entered  and  incurred  expenses  and 
improved  the  premises,  they  will,  as  a  general  rule,  enforce 
the  contract  against  the  other  party  on  grounds  of  equity  and 
conscience,  and  to  prevent  what  would  be  in  the  nature  of  a 
fraud."  Browne  on  Stat.  of  Frauds,  §  31 ;  Hall  v.  Chajfee, 
13  Verm.  E.  150. 

The  doctrine  applies  as  well  to  cases  arising  under  the 
10th  section  of  the  statute  as  under  any  other  of  its  pro- 
visions. When  the  tenant  enters  into  a  parol  agreement 
with  his  landlord  to  make  a  surrender  of  the  demised 
premises,  and  in  pursuance  of  the  agreement  provides 
another  residence,  abandons  possession  of  the  premises, 
delivers  his  counterpart  of  the  lease  and  the  key  of  the 
dwelling  to  his  landlord,  giving  him  the  entire  control,  it 
would  be  most  inequitable  to  permit  the  landlord  to  re- 
cover rent  from  the  lessee  upon  the  ground  that  the  sur- 
render was  not  made  in  writing  in  pursuance  of  the 
statute  of  frauds.  It  is  clearly  within  the  province  of  a 
court  of  equity,  by  its  interference,  to  prevent  such  injus- 
tice. In  Natchbolt  v.  Porter,  2  Vernon  112,  it  was  held 
that  where  u  lessee  for  years,  having  agreed  with  his 
lessor  to  surrender  his  lease,  delivers  up  the  key,  which 
the  lessor  accepts,  but  afterwards  refuses  to  take  the  sur- 
render of  the  lease,  the  lessee  should  be  discharged  of  the 
rent.  The  case  is  a  remarkable  one,  from  the  fact  that 
there  was  a  recovery  by  the  reversioner  against  the  origi- 
nal lessee  for  the  rent.  His  executor  thereupon  brought 
his  bill  against  Porter,  the  assignee  of  the  term,  to  be 


MAY  TERM,  1861.  393 

Stotesbuiy  v.  Vail. 

re-imbursed  according  to  his  covenant  of  indemnity  on  the 
assignment.  Porter,  who  was  not  a  party  to  the  bill 
against  his  assignor,  by  his  answer  set  forth  the  agree- 
ment with  the  reversioner  to  surrender  the  terra,  the 
delivery  of  the  key,  and  his  acceptance  of  it,  and  there- 
fore insisted  that  he  ought  not  to  be  charged ;  and  the 
court,  upon  the  hearing  of  the  cause,  was  of  opinion  that  the 
agreement  was  well  proved  and  a  good  discharge,  and  Porter 
not  liable  to  answer  any  rent  after  that  time. 

The  objection  to  the  bill  is  not  well  taken.  If  the  case 
made  by  it  is  sustained  by  evidence,  the  complainant  is 
clearly  entitled  to  relief. 

The  second  ground  for  dissolving  the  injunction  is, 
that  the  equity  of  the  bill  is  denied  by  the  answer.  Some 
of  the  material  allegations  of  the  bill  are  fully  denied  by 
the  affidavit  of  the  attorney  and  agent  of  the  defendant, 
who  had  the  management  and  control  of  the  business  on 
behalf  of  the  defendant.  But  it  is  not  denied  that  there 
were  negotiations  between  the  lessee  and  the  attorney  of 
the  lessor  for  a  surrender  of  the  premises  on  the  1st  of 
April,  1859 ;  that  after  such  negotiation  the  lessee  pur- 
chased a  residence,  and  prepared  to  remove  upon  the  1st 
of  April;  that  soon  after  the  1st  of  April  he  left  the 
premises,  and  delivered  his  counterpart  of  the  lease, 
together  with  the  key  of  the  house,  to  a  friend  and  rela- 
tive of  the  lessor,  who,  to  some  extent  at  least,  acted  as 
his  agent;  and  that  from  that  time  the  lessee  ceased  to 
occupy  the  premises,  and  exercised  no  control  over  them. 
There  is  no  suggestion  in  the  answer  of  any  want  of  good 
faith  on  the  part  of  the  lessee  iu  these  transactions,  nor 
of  any  fraudulent  combination  between  himself  and  the 
party  to  whom  he  surrendered  the  lease  and  the  key  as 
the  agent  of  the  lessor ;  nor  does  any  intimation  appear 
to  have  been  given  to  the  lessee  of  any  want  of  authority 
in  the  supposed  agent  to  accept  the  surrender,  or  of  any 
intention  to  hold  the  lessee  liable  upon  his  covenants  iu 
the  lease.  Under  these  circumstances,  I  deem  it  a  proper 


394  CASES  IN  CHANCERY.  - 

Stotesburj  r.  Vail. 

case  to  continue  the  injunction  until  the  case  can  be  heard 
upon  the  merits. 

Even  where  the  equity  of  the  bill  is  fully  denied  by  the 
answer,  the  continuance  of  the  injunction  till  the  final 
hearing  is  a  matter  resting  in  the  sound  discretion  of  the 
court.  In  this  case,  the  ends  of  justice  will  be  better  an- 
swered by  its  continuance.  Chetwood  v.  Briltan,  1  Green's 
Ch.  R.  439;  Greenin  v.  Hoey,  1  Stockt.  137;  Furman  v. 
Clark,  3  Stockt.  135. 

I  adopt  this  course  the  more  readily,  inasmuch  as,  upon  a 
formal  ground  urged  upon  the  hearing,  the  motion  to  dissolve 
the  injunction  must  necessarily  have  been  denied.  At  the 
time  of  filing  the  answer  the  defendant  was  abroad,  and  the 
answer  was  not  sworn  to  by  him.  It  was  verified  simply  by. 
the  affidavits  of  the  agent  and  friend  of  the  defendant,  who 
were  cognizant  of  the  material  facts.  This  is  not  sufficient. 
The  complainant  is  entitled  to  the  benefit  of  the  defendant's 
own  oath.  If  he  is  absent  from  the  country,  it  may  be  taken 
under  a  commission.  Trumbull  v.  Gibbon,  Halst.  Dig.  225  ; 
2  Daniel? s  Ch.  Pr.  844,  857 ;  Read  v.  Consequa,  4  Wash.  C. 
C.  R.  335. 

I  am  aware  of  no  case  where  an  answer,  not  sworn  to  by 
the  defendant  himself,  has  been  received  after  objection. 
Where  no  answer  is  put  in,  the  case  may  be  heard  upon  affi- 
davits taken  upon  two  days'  notice,  which  the  adverse  party 
may  rebut  by  counter  affidavits.  Rule  IX.,  §  3.  This  course 
was  not  adopted  in  the  present  case. 

The  objection,  that  the  affidavits  annexed  to  the  answer 
are  inadmissible  on  the  ground  that  copies  of  the  affidavits 
were  not  served  upon  the  adverse  party,  is  not  well  taken. 
Affidavits  annexed  to  a  bill  or  answer  are  not  required  to  be 
taken  upon  notice,  nor  are  copies  of  such  affidavits  to  be 
served,  except  where  specially  required  by  the  rules  of  the 
court. 

Since  the  argument  of  the  cause,  the  court  has  been 
furnished  by  the  complainant's  solicitor  with  an  affidavit 
of  the  defendant  verifying  such  facts  stated  in  the  answer 


MAY  TERM,  1861.  395 

Fackler  v.  Worth. 

as  are  within  his  knowledge.  If  this  were  the  only  difficulty 
in  the  cause,  I  should  be  disposed,  notwithstanding  the  irreg- 
ularity, to  permit  the  answer  to  be  verified  by  the  oath  of 
the  defendant.  But  it  would  not,  under  the  circumstances, 
vary  the  conclusion  at  which  I  have  arrived  in  regard  to  the 
disposition  of  the  case. 

The  motion  to  dissolve  must  be  denied,  with  costs,  and  the 
injunction  continued  till  the  final  hearing. 

CITED  in  Iriek  v.  Slack,  2  C.  E.  Or.  200  ;    Firmslone  v.  J>«  Camp,  2  C. 
E.  Gr.  316 ;  Murray  v.  Elslon,  8  C.  E.  Gr.  129. 


FACKLER  vs.  WORTH. 

1.  An  order  to  deliver  possession  to  the  purchaser  of  mortgaged  prem- 
ises sold  under  a  decree  of  foreclosure  will  be  made  only  upon  notice  of 
the  application  and  proof  that  the  deed  was  shown  to  (he  tenant,  that  a 
demand  of  possession  was  made,  and  that  the  tenant  refused  to  comply. 

2.  TUe  injunction,  as  well  as  the  attachment  to  enforce  obedience  to  the 
order,  is  disused. 

3.  Under  the  present  practice,  the  writ  of  assistance  does  not  issue  of 
course,  but  upon  notice  of  the  application  and  proof  of  tlie  service  of  the 
order  to  deliver  possession  and  refusal  to  obey. 

Application  on  behalf  of  a  purchaser  of  mortgaged  prem- 
ises, sold  under  and  by  virtue  of  a  decree  of  foreclosure,  for 
an  order  to  deliver  possession  of  the  premises,  iu  order  to 
obtain  a  writ  of  assistance, 

Carpenter,  for  petitioner. 

THE  CHANCELLOR.  The  petitioner  asks  for  an  order 
upon  the  tenant  in  possession  to  deliver  to  the  purchaser 
the  possession  of  mortgaged  premises  sold  under  execu- 
tion issued  out  of  this  court  upon  a  decree  of  foreclosure. 
Tlie  order  is  asked  for  with  the  view  of  obtaining  a  writ 
of  assistance  in  case  the  possession  is  not  surrendered. 
The  application  is  not  regular.  To  obtain  the  order,  it  is 
necessary  to  prove — 1,  notice  of  the  application  duly 


396  CASES  IN  CHANCERY. 

Fackler  v.  Worth. 

served  ;  2,  that  the  deed  was  shown  to  the  tenant,  a  demand 
of  the  possession  made,  and  a  refusal  to  comply.  Kershaw 
v.  Thompson,  4  Johns.  C.  R.  609  ;  Ludlow  v.  Lansing,  Hop- 
kins 231  ;  Valentine  v.  Teller,  Hopkins  422. 

The  order  is  not  a  matter  of  course.  The  tenant  may  be 
in  possession  by  title  paramount  to  that  of  the  mortgagor,  or 
may  have  other  good  objection  to  the  application.  He  is 
entitled  to  be  heard  before  an  order  is  made  upon  him  to  sur- 
render possession  of  the  premises.  If  he  have  no  defence, 
he  ought  not  to  be  subjected  to  the  costs  of  the  proceeding 
without  an  opportunity  of  being  heard. 

Notice  of  application  for  the  writ  of  assistance  will  not 
obviate  the  necessity  nor  supply  the  want  of  the  notice  of  the 
present  motion.  The  immediate  design  of  the  two  orders  is 
totally  distinct.  The  defendant  is  entitled  to  be  heard  in  op-' 
position  to  both.  By  the  ancient  practice  of  the  Court  of 
Chancery,  after  a  decree  for  the  delivery  of  possession  had 
been  served,  and  obedience  thereto  refused,  application  was 
made — 1st,  for  an  attachment;  2d,  for  an  injunction;  3d,  for  a 
wdt  of  assistance.  The  two  preliminary  orders  were  made  upon 
notice  and  proof.  The  writ  of  assistance  issued  of  course  and 
without  notice,  but  it  was  always  preceded  by  the  preliminary 
order  for  injunction  and  proof  of  refusal  to  obey  the  decree. 

The  subject  was  considered  in  Schenck  v.  Conover,  decided 
in  October  Term,  I860:  and  it  was  then  suggested  that  the 
injunction  might  advantageously  be  dispensed  with,  in  accord- 
ance with  the  modern  practice  in  England  and  in  New  York. 
2  DanieWs  Ch.  Pr.  1280 ;  Valentine  v.  Teller,  Hopkins  422. 

I  am  satisfied  that  the  practice  in  this  particular  should  be 
uniform,  and  that  the  use  of  the  injunction  should  be  entirely 
discontinued.  It  is  a  useless  encumbrance  and  expense.  It 
is  now,  in  fact,  rarely  used,  and  only  serves  to  embarrass 
practitioners.  The  injunction  and  the  proofs  preliminary 
thereto  being  disused,  the  writ  of  injunction  can  issue  only 
upon  notice  and  proof  of  the  service  of  the  order  to  del'ver 
possession  and  refusal  to  obey. 

CITED  in  Shields  v.  Lozear,  5  Vr.  608. 


MAY  TERM,  1861.  397 

Haring  v.  Kauffman. 


HARING  vs.  KAUFFMAN  and  others. 

1.  To  effect  a  regular  service  of  an  injunction,  the  writ  itself,  under  the 
seal  of  the  court,  must  be  shown  to  the  party  against  whom  it  issues,  and 
a  true  copy  thereof  delivered  to  him. 

2.  Personal  service  will  be  dispensed  with  where  the  party  is  out  of  the 
state,  or  cannot  be  found. 

3.  The  modern  practice  is  for  the  court,  by  special  order,  to  dispense 
with  personal  service  where  the  defendant  avoids  the  service  of  the  writ, 
or  other  circumstances  render  such  order  necessary  or  proper. 

4.  The  court  will  punish  the  violation  of  its  order  for  the  injunction, 
though  the  writ  be  not  served,  if  it  appear  that  the  defendant  knew  of  its 
existence. 

5.  Where  the  defendant  and  his  wife  were  non-residents,  and  the  in- 
junction was  served  out  of  the  state  on  the  husband,  and  proof  was  made 
that  the  wife  could  not  be  found,  an  order  was  made  that  such  service 
Bhould  be  deemed  valid,  and  directing  a  copy  of  such  order  to  be  served 
at  the  dwelling-house  of  the  defendants. 


Lyons,  for  complainant. 

THE  CHANCELLOR.  The  bill  seeks,  among  other  things, 
to  set  aside,  as  fraudulent,  certain  conveyances  made  by  John 
F.  Kauffman,  the  defendant,  to  Christian  Vogel,  bearing 
date  on  the  27th  of  November,  I860,  a  re-conveyance  of  the 
same  premises,  by  deed  of  even  date,  from  Vogel  and  wife 
to  Eve,  the  wife  of  Kauffman,  and  a  mortgage  of  the  same 
premises  from  Kauffman  and  wife  to  Rose,  the  wife  of  Vogel, 
for  $2000,  dated  on  the  16th  of  April,  1861.  An  injunc- 
tion issued  to  restrain  Kauffman  and  wife  from  conveying 
or  encumbering  the  premises,  and  also  to  restrain  Vogel  and 
wife  from  transferring  the  mortgage  or  collecting  the  mort- 
gage debt.  Kauffman  resides  in  this  state;  Vogel  resides  in 
the  city  of  New  York.  The  subpcena  was  served  personally 
on  the  wife  of  Kauffman,  and  on  Kauffman  himself,  by  leav- 
ing a  copy  at  his  dwelling-house.  The  injunction  was  served 
personally  on  the  wife  of  Kauffman,  in  this  state,  and  a 
copy  If  ft  with  her  at  the  place  of  abode  of  her  husband. 
The  injunction  was  served  upon  Vogel,  by  showing  him 

VOL.  ii.  2  B 


398  CASES   IN  CHANCERY. 

Haring  v.  Kauffman. 

the  original,  and  leaving  a  copy  with  him  at  his  place  of 
abode  in  the  city  of  New  York.  The  affidavits  show  that 
neither  Kauffraan  himself  nor  the  wife  of  Vogel  could  be 
found  after  diligent  search  and  inquiry.  The  complainant 
now  moves  that  the  service  of  the  injunction,  thus  made  as 
aforesaid,  be  deemed  and  taken  to  be  a  valid  and  sufficient 
service  thereof  upon  all  the  said  defendants. 

To  effect  a  regular  service  of  an  injunction,  the  writ  itself, 
under  the  seal  of  the  court,  must  be  shown  to  the  party 
against  whom  it  issues,  and  a  true  copy  thereof  delivered  to 
him.  Wyatt's  Prac.  Reg.  232  ;  1  Newland's  Ch.  Pr.  231 ; 
3  Daniel/' 's  Ch.  Pr.  1818  ;  J  Eden  on  Injunc.  (by  Waterman) 
93 ;  1  Barbour's  Ch.  Pr.  590. 

Personal  service  will  be  dispensed  with  where  the  party  is 
out  of  the  state,  or  cannot  be  found. 

It  would  seem,  from  some  of  the  earlier  cases,  that  leaving 
the  injunction  at  the  dwelling  of  the  defendant  was  a  suffi- 
cient service,  without  a  special  order  of  the  court  to  warrant 
or  confirm  it.  Thus,  in  the  19th  and  22d  years  of  Elizabeth, 
an  attachment  was  ordered,  upon  proof  that  the  writ  of  in- 
junction was  left  at  the  house  of  the  defendant,  and  that  he 
had  disobeyed  it.  Holgate  and  wife  v.  Grantham,  Gary  58 ; 
Eodnam  v.  Morgan,  Gary  101. 

The  modern  practice  is  for  the  court,  by  special  order,  to 
dispense  with  personal  service  where  the  defendant  avoids 
the  service  of  the  writ,  or  other  circumstances  render  such 
order  necessary  or  proper.  Wyatt's  Prac.  Reg.  232 ;  Eden 
on  Injunc.  (by  Waterman)  76. 

In  Pearce  v..  Crutchfield,  14  Yesey  206,  it  was  ordered 
that  service  of  the  injunction  at  the  house  which  ap- 
peared to  be  the  last  place  of  abode  of  the  defendant, 
though  afterwards  apparently  shut  up,  should  be  good 
service. 

The  propriety  of  the  order  asked  for,  as  regards  the 
service  of  the  writ  upon  Kauffman,  is  clear.  He  is  within 
the  state,  has  been  legally  served  with  process  of  subpoena, 
and  a  copy  of  the  injunction  has  been  left  at  his  dwelling 


MAY  TERM,  1861.  399 


Haring  v.  Kauffman. 


house.  The  affidavits,  moreover,  warrant  the  belief  that  he 
is  endeavoring  to  avoid  the  service  of  the  injunction. 

There  is  more  room  for  question  as  to  the  propriety  of 
the  order  in  regard  to  the  service  of  the  writ  on  Vogel 
and  wife.  It  is  true  that  the  writ  was  served  personally 
upon  Vogel,  and  a  copy  left  with  him  at  his  dwelling- 
house,  the  wife  not  being  found,  and  the  affidavits  war- 
ranting the  belief  that  she,  also,  is  endeavoring  to  avoid 
the  service  of  the  injunction.  The  mode  of  service  is 
substantially  the  same  in  both  cases ;  but  the  material 
difference  lies  in  the  fact,  that  the  service  upon  Vogel  and 
wife  was  made  out  of  the  state,  the  defendant  not  having 
been  previously  brought  within  the  jurisdiction  of  the 
court  by  the  service  of  a  subpoena.  The  mode  prescribed 
by  the  statute  for  effecting  the  appearance  of  the  defend- 
ant has,  however,  been  adopted,  and  is  in  the  process  of 
completion.  I  incline  to  think  that  no  principle  or  rule 
of  practice  will  be  violated  by  maintaining  the  legality  of 
the  service.  The  ends  of  justice  manifestly  require  it. 
All  that  is  required  to  enable  the  court  to  enforce  obedi- 
ence to  its  process  is,  that  the  defendant  should  have 
knowledge  of  the  order  for  the  injunction.  The  court 
may  punish  the  violation  of  the  order,  though  the  injunc- 
tion be  not  served,  if  it  appear  that  the  defendant  knew 
of  its  existence.  Kimpton  v.  Eve,  2  Ves.  &  B.  349  ;  Hearne 
v.  Tencmt,  14  Ves.  136  ;  Skip  v.  Harwood,  3  Atk.  564 ;  James 
v.  Downes,  18  Ves.  622-1  Eden  on  Injunc.  94  ;  Drewry  399  ; 
McNeil  v.  Garrett,  1  Craig  &  Ph.  98 ;  Hull  v.  Thomas,  3 
Edw.  Ch.  Rep.  236. 

If  the  injunction  was  properly  granted,  the  service, 
though  out  of  the  state,  answers  all  the  ends  for  which  it 
was  intended.  It  apprises  the  party  of  the  order  of  the 
court. 

The  motion  will  be  granted,  and  the  service  of  the  injunc- 
tion upon  all  the  defendants  declared  valid. 

It  is  proper  that  a  copy  of  this  order  should  be  served 
upon  the  parties,  either  personally  or  by  leaving  a  copy 


400  CASES  IN  CHANCERY. 

Gaskill  v.  Sine. 

at  the  dwelling-house  of  each  of  them  within  twenty  days 
from  the  date  of  the  order. 

Order  accordingly. 


JOB  H.  GASKILL  vs.  SIK^E  and  wife. 

1.  Where  two  lots  are  mortgaged  to  secure  the  same  debt,  and  one  of 
them  is  subsequently  sold  and  conveyed  by  the  mortgagor,  the  other  lot 
is  primarily  liable  under  the  mortgage. 

2.  A  release  subsequently  given  by  the  mortgagee  to  the  mortgagor  upon 
the  remaining  unsold   lot,  without  the  assent  of  the  purchaser  of  the  lot 
sold,  will  not  prejudice  the  rights  of  the  purchaser. 

3.  If  the  lot  released  is  sufficient  to  satisfy  the  entire  debt,  the  mortga- 
gee cannot  resort  to  the  lot  first  sold  j  hut  if  sufficient  to  satisfy  only  a  part 
of  the  debt,  such  first-sold  lot,  in  the  hands  of  the  purchaser,  will  be  an- 
swerable for  the  deficiency. 

4.  Reference  ordered  to  ascertain  the  amount  due  on  the  mortgage  and 
the  value  of  the  premises  released. 


Wilson,  for  complainant. 
Merrittj  for  defendant. 

THE  CHANCELLOR.  The  complainant's  bill  is  filed  to 
foreclose  a  mortgage  given  by  Israel  Gaskill  to  James  S. 
Budd,  on  the  30fch  of  August,  1849,  upon  two  lots  of  land. 
On  the  6th  of  October,  1849,  the  mortgagor  conveyed  lot 
number  two  to  Louisa  Sine,  the  wife  of  the  defendant,  by 
deed  with  covenant  of  general  warranty.  On  the  15th  of 
July,  1850,  the  mortgagee  released  to  the  mortgagor  lot  num- 
ber one,  and  on  the  5th  of  August,  1850,  assigned  the  mort- 
gage to  the  complainant. 

Sine  and  wife,  who  claim  title  to  the  lot  number  two, 
insist,  by  way  of  defence,  that  lot  number  one,  having 
been  retained  by  the  mortgagor  after  the  sale  of  the  lot 
to  the  defendants,  the  lot  so  retained  must  be  first  subject 
to  the  mortgage  debt,  and  the  lot  of  the  defendants  cau 


MAY  TERM,  1861.  401 

Gaskill  v.  Sine. 

» 

only  be  resorted  to  to  make  up  any  deficiency  that  may 
exist  upon  such  sale,  and  that  the  mortgagee,  having  re- 
leased to  the  mortgagor  all  right  to  the  lot  retained  by  him 
after  the  conveyance  to  the  defendants,  has  no  right  to 
look  to  the  defendants'  lot  for  any  part  of  the  mortgage 
debt,  but  that  the  same  is  released  from  the  encumbrance 
of  the  mortgage.  The  facts  which  constitute  this  ground 
of  defence  are  admitted,  and  their  effect  upon  the  rights  of 
the  parties  is  obvious.  The  defendants,  as  the  purchasers 
of  one  of  the  lots  mortgaged,  are  entitled  to  throw  the 
whole  encumbrance  upon  the  lot  retained  by  the  mortga- 
gor, if  that  is  sufficient  to  discharge  the  debt,  and  the  mort- 
gagee can  only  resort  to  the  defendants'  lot  to  supply  the 
deficiency,  if  any  exist. 

A  release,  subsequently  given  by  the  mortgagee  to  the 
mortgagor,  of  the  mortgage  upon  the  lot  remaining  un- 
sold, without  the  assent  of  the  purchaser  of  the  lot  sold, 
will  not  prejudice  the  rights  of  the  purchaser.  This 
was  declared  by  the  late  Chancellor  to  be  the  effect 
of  these  admitted  facts  upon  the  rights  of  the  parties  in 
this  case  when  the  question  was  before  him.  The  doc- 
trine is  a  familiar  one,  and  is  sustained  by  numerous  au- 
thorities. Miclde  v.  Rambo,  Saxton  601 ;  Shannon  v.  Mar- 
selis,  Saxton  413;  Stevens  v.  Cooper,  1  Johns.  Ch.  R.  425; 
Guion  v.  Knapp,  6  Paige  35  ;  Patty  v.  Pease,  8  Paige  277. 

There  is  no  foundation  for  the  idea  that  the  subsequent 
release  by  the  mortgagee  of  the  lot  retained  by  the  mort- 
gagor deprived  the  mortgagee  of  all  remedy  against  the 
first  lot.  It  can  produce  that  result  only  where  the  lot 
released  is  sufficient  to  satisfy  the  entire  mortgage  debt. 
The  release  in  no  wise  affects  the  interest  of  the  purchaser 
of  the  lot  first  sold.  He  is  entitled,  in  any  event,  to  throw 
the  mortgage  on  the  other  lot,  so  far  as  it  will  satisfy  the 
debt.  If  the  lot  released  is  sufficient  to  satisfy  the  entire 
debt,  the  mortgagee  cannot  resort  to  the  lot  first  sold. 
He  must  bear  the  loss.  If  sufficient  to  satisfy  only  a  part 


402  CASES  IN  CHANCERY. 

Gaskill  v.  Sine. 

of  the  debt,  the  lot  in  the  hands  of  the  purchaser  will  be 
answerable  for  the  deficiency. 

A  second  ground  of  defence  presented  by  the  answer  is, 
that  the  complainant  acted  as  the  agent  or  trustee  of  the 
mortgagor  in  procuring  the  assignment  of  the  mortgage,  and 
that  the  consideration  paid  for  the  assignment  was  the  money 
of  the  mortgagor.  No  replication  having  been  filed,  the . 
answer  upon  the  former  hearing  was  taken  as  true,  and  the 
Chancellor  held  that  the  bill,  upon  this  state  of  the  facts, 
was  virtually  by  the  mortgagor  himself;  that  the  complain- 
ant had  no  equity,  and  that  the  bill  must  be  dismissed.  The 
decree  having  been  opened,  a  replication  filed,  and  evidence 
taken  upon  this  part  of  the  defence,  the  question  is  now  pre- 
sented, whether  this  defence  is  sustained  in  point  of  fact. 
The  defence  consists  of  new  matter  not  responsive  to  the  bill, 
and  must  be  sustained  by  evidence.  No  evidence  is  produced 
in  its  support.  The  fact  that  the  complainant  is  a  brother 
of  the  mortgagor,  and  that  he  holds  a  conveyance  of  his  real 
estate  in  trust  for  him,  amounts  to  nothing.  It  is  shown 
affirmatively,  by  the  complainant,  that  the  consideration  was 
advanced  by  himself,  and  there  is  no  proof  that  any  part  of 
it  was  received  directly  or  indirectly  from  the  funds  of  the 
mortgagor. 

The  fact  that  the  conveyance  by  the  mortgagor  to  the  de- 
fendant's wife  was  not  made  for  a  valuable  consideration,  but 
for  natural  love  and  affection,  will  not  affect  the  rights  of 
the  parties.  The  deed  contained  a  covenant  of  warranty. 
It  was  duly  recorded.  The  assignee  of  the  mortgage  took 
the  assignment  with  full  notice  of  the  rights  of  the  de- 
fendants. 

The  objection  that  the  prayer  of  the  bill  is  defective, 
is  without  foundation.  The  complainant  might  have  the 
relief  to  which  he  has  shown  himself  entitled  under  the 
ordinary  prayer  of  a  bill  of  foreclosure  contained  in  the 
bill  as  originally  filed.  Under  a  prayer  for  the  sale  of  the 
entire  mortgage  premises  to  pay  the  whole  debt,  the 


MAY  TERM,  1861.  403 

Skillman  v.  Skillman. 

complainant  may  have  a  decree  to  sell  such  portion  of  the 
premises,  to  pay  such  part  of  the  debt  as  the  evidence  may 
•warrant.  But  the  prayer  to  the  amended  bill  has  antici- 
pated the  defendants'  objection,  and  is  precisely  adapted  to 
the  relief  granted. 

The  complainant  is  entitled  to  an  account  and  a  decree 
against  the  defendants,  for  the  foreclosure  and  sale  of  the  lot 
conveyed  to  Louisa  Sine,  to  satisfy  so  much  of  the  mortgage 
debt  as  the  premises  released  will  be  insufficient  to  satisfy.  A 
reference  will  be'ordered  to  ascertain  the  amount  due  upon 
the  mortgage  and  the  value  of  the  premises  released. 

CITED  in  Weatherby  v.  Slack,  1  C.  E.  Gr.  491 ;  Hoy  v.  JBramhall,  4  C.  E. 
Gr.  571 ;  Harrison  v.  Guerin,  12  C.  E.  Gr.  222. 


RACHEL  SKILLMAN  vs.  JOHN  Q.  SKILLMAN. 

1.  At  common  law,  the  husband  is  entitled  not  only  to  all  the  personal 
property  which  the  wife  owns  at  the  time  of  her  marriage,  but  to  all  that 
she  acquires  by  her  skill  or  labor  during  the  coverture. 

2.  Though  a  gift  from  the  husband  to  the  wife  is  void  at  law,  it  will  be 
protected  in  equity,  as  against  the  husband,  and  if  made  by  virtue  of  an 
ante-nuptial  agreement,  as  against  his  creditors  also. 

2.  A  married  woman  purchasing  land  with  the  knowledge  and  approval 
of  her  husband,  the  title  being  taken  in  the  name  of  the  husband,  and  he 
executing  a  mortgage  thereon,  for  the  cost  of  a  dwelling  subsequently 
erected,  will  acquire  no  equitable  title  to  the  premises,  as  against  the  hus- 
band's creditors,  on  the  ground  that  she  mainly  contributed  to  paying  off 
the  mortgage  from  the  avails  of  her  labor  during  coverture. 


Leupp,  for  complainant. 
Speer,  for  defendant. 

THE  CHANCELLOR.  The  bill  charges  that,  in  the  year 
1847,  the  complainant,  with  the  knowledge  and  approval 
of  her  husband,  Daniel  Skillman  —  who  was  a  man  of 
small  means,  and  dependent  upon  his  labor  for  support — 


404  CASES  IN  CHANCERY. 

Skillman  v.  Skillman. 

purchased  a  small  lot  in  the  city  of  New  Brunswick,  for 
the  sum  of  $175,  with  the  design  of  erecting  thereon  a 
dwelling,  for  the  use  of  herself  and  her  family;  that  the 
said  Daniel  Skillman  paid  the  purchase  money  for  the 
said  lot,  and  the  same  was  conveyed  to  him  by  deed 
dated  the  8th  day  of  January,  1847;  that  a  dwelling  was 
forthwith  erected  upon  the  said  lot,  at  a  contract  price  of 
$675,  for  $500  of  which  a  mortgage  was  given  by  Daniel 
Skillrnan  and  his  wife,  the  complainant,  upon  the  said 
house  and  lot;  that  the  interest  upon  the  said  nlortgage, 
up  to  May,  1854,  together  with  $100  of  the  principal,  was 
paid  by  the  complainant  from  her  own  earnings;  that  in 
April,  1851,  the  husband  subscribed  for  two  shares  in  the 
Mechanics'  Building  and  Loan  Association  of  New  Bruns- 
wick, and  that  the  complainant  contributed,  from  time  to 
time,  of  her  own  earnings,  to  pay  the  monthly  installments 
upon  said  shares;  that  in  1858,  a  loan  of  $400  was  ob- 
tained from  the  said  association,  to  satisfy  the  original 
mortgage  upon  the  said  house  and  lot,  and  that  the  con- 
tributions for  interest  upon  the  said  loan,  and  the  monthly 
payments  to  the  said  association,  have  been  principally 
paid  by  the  complainant,  out  of  her  earnings,  the  husband 
contributing,  from  the  avails  of  his  labor,  but  little  to  those 
objects ;  that  the  payments  thus  made,  together  with  the 
value  of  the  two  shares  of  stock  in  the  building  associa- 
tion, are  nearly  sufficient  to  extinguish  the  mortgage 
debt  upon  the  said  house  and  lot;  that  the  complainant 
has  thus,  from  her  own  earnings,  derived  from  keeping 
boarders  and  from  washing  and  ironing,  contributed 
largely  toward  the  building  of  said  house  and  keeping  it 
in  repair,  during  the  lifetime  of  her  husband,  and  without 
the  knowledge  of  any  encumbrance  upon  the  said  prem- 
ises; that  Daniel  Skillman,  the  husband  of  the  complain- 
ant, died  on  the  20th  of  June,  1860;  that  since  his  death, 
the  said  house  and  lot  have  been  advertised  for  sale  by 
the  sheriff  of  the  county  of  Middlesex,  by  virtue  of  an 
execution  issued  out  of  the  Supreme  Court,  upon  a  judg- 


MAY  TERM,   1861.  405 

Skillman  v.  Skillman. 

ment  confessed  by  the  said  Daniel  Skillman  to  his  brother, 
John  G.  Skillman,  on  the  24th  of  May,  1850;  that  the 
said  judgment  was  fraudulent,  and  was  entered  for  the  pur- 
pose of  protecting  the  property  of  the  said  Daniel  Skillman 
from  his  creditors,  and  was  without  consideration,  equitable 
or  legal. 

The  bill  prays  that  the  interest  of  the  complainant  in  the 
premises  may  be  protected ;  that  the  defendant  may  be 
restrained  from  making  sale  of  the  said  premises,  and  that 
the  said  judgment  and  execution  may  be  set  aside. 

An  injunction  issued,  pursuant  to  the  prayer  of  the  bill, 
restraining  the  sale  by  virtue  of  the  said  execution  until  the 
further  order  of  the  court. 

The  answer  of  John  G.  Skillman  denies  all  fraud  in 
the  eatjy  or  procurement  of  his  judgment  against  the  said 
Daniel  Skillman ;  professes  entire  ignorance  in  regard  to  the 
advances  alleged  to  have  been  made  by  the  complainant 
toward  the  purchase  of  the  said  house  and  lot,  and  insists 
that,  if  such  advances  were  made  as  set  out  in  the  complain- 
ant's bill,  she  thereby  acquired  no  separate  interest  in  the 
said  real  estate. 

The  defendant  now  asks  a  dissolution  of  the  injunction. 
The  complainant  asks  relief  against  the  judgment  at  law 
on  two  distinct  grounds,  viz.:  1,  because  she  has  an  equitable 
interest  in  the  property  levied  upon  to  satisfy  the  judgment; 
2,  because  the  judgment  is  fraudulent. 

The  fraud  is  fully  denied  by  the  answer.  The  com- 
plainant, moreover,  has  no  standing  in  court,  and  no 
right  to  question  the  bona  fides  of  the  judgment,  unless 
she  has  some  interest  in  the  property  to  be  prejudiced  by 
the  judgment.  She  does  not  claim  dower  in  the  property, 
nor  could  such  claim  be  in  anywise  affected  by  the  judgment 
and  execution  against  her  former  husband.  If  the  property 
in  question  be  sold  to  satisfy  the  judgment  against  Daniel 
Skillman,  the  right  of  the  complainant,  as  his  widow,  to 
dower  is  not  affected. 

Nor  is  the  case  at  all  strengthened  by  the  prayer  of  the 


406  CASES  IN  CHANCERY. 

Skillman  v.  Skillman. 

complainant  to  have  the  right  of  her  infant  daughter,  the 
only  child  and  heir-at-law  of  Daniel  Skillman,  protected 
against  the  operation  of  the  judgment.  The  daughter  is 
not  a  party  to  the  bill.  No  decree  can  be  made  either  for 
or  against  her  interests.  The  bill  does  not  purport  to  be 
filed  in  her  name  or  on  her  behalf.  On  the  contrary,  the 
claim  of  the  complainant,  as  set  out  in  the  case,  is  not 
only  distinct  from  and  independent  of  the  title  of  the 
daughter  as  heir-at-law  of  Daniel  Skillman,  but  is  incon- 
sistent with  it.  She  claims  to  have  an  equitable  title  to 
the  property  superior  to  that  of  her  husband  at  the  time 
of  his  death,  which,  if  valid,  is  fatal  to  the  title  of  his  heir- 
at-law. 

It  seems  evident,  therefore,  that  the  only 'equity  of  the 
complainant's  bill,  and  her  sole  ground  of  relief,  rests  upon 
her  claim  to  an  equitable  estate  in  the  house  and  lot  in  ques- 
tion. If  she  have  no  such  estate,  she  has  no  ground  upon 
which  she  can  contest  the  validity  or  bona  fides  of  the  judg- 
ment at  law. 

The  complainant  does  not  claim  that  she  owned  any 
property,  real  or  personal,  at  the  time  of  her  marriage, 
•  or  that  she  ever  received  any  property  by  gift,  grant, 
devise  or  bequest  during  her  coverture.  The  claim  is, 
that  the  separate  property  consisted  exclusively  of  her 
earnings,  the  fruits  of  her  own  industry  acquired  during 
her  coverture,  and  by  and  with  the  consent  and  approba- 
tion of  her  husband,  invested  in  the  erection  and  improve- 
ment of  the  dwelling-house  and  lot  in  question.  The  claim 
is  not  within  the  protection  of  the  statute.  Nix.  Dig.  466. 
It  must  be  sustained,  if  at  all,  upon  general  principles  of 
equity  and  upon  the  rules  of  the  common  law,  independent 
of  the  statute. 

At  common  law,  the  husband  is  entitled  not  only  to 
all  the  personal  property  which  the  wife  owns  at  the  time 
of  her  marriage,  but  to  all  that  she  acquires  by  her  skill 
or  labor  during  the  coverture.  His  right  to  her  services 
and  to  the  proceeds  of  her  skill  and  industry  is  absolute. 


MAY  TERM,  1861.  407 

Skillman  v.  Skillman. 

He  may  sue  for  and  recover  them  in  his  own  name.  If  paid 
to  his  wife,  without  the  authority  and  against  the  direction 
of  the  husband,  he  may,  nevertheless,  recover  them.  Buckley 
v.  Colliert  Sal.  114;  Glover  v.  Proprietors  of  Drury  Lane,  2 
Ch'dty  117;  JSac.  Ab.,  "  Baron  and  Feme"  F. ;  Reeves' 
Dom.  Rel.  63  ;  Clancy  on  Hash,  and  Wife  3. 

If,  therefore,  the  complainant  has  acquired  any  separate 
property  in  her  earnings,  it  must  be  by  gift  from  her  husband. 
Though,  by  reason  of  the  unity  of  person  subsisting  between 
them,  such  gift  from  the  husband  to  the  wife  is  void  at  law, 
it  will  be  protected  in  equity  as  against  the  husband,  and  if 
made  by  virtue  of  an  ante-nuptial  agreement,  as  against  his 
creditors  also.  Slanning  v.  Style,  3  P.  Wms.  337  ;  Lucas 
v.  Lucas,  1  Atk.  270;  Walter  v.  Hodge,  2  Swanst.  109; 
Clancy  on  Husb.  and  Wife  276,  277;  1  Bl.  Com.  442, 
note  29. 

The  husband  will  be  treated  in  equity  as  a  trustee  of  the 
property  for  the  benefit  of  the  wife. 

But,  in  such  cases,  the  fact  of  the  making  of  the  gift,  and 
that  it  was  intended  for  the  use  of  the  wife  as  her  separate 
property,  must  be  clearly  established. 

To  constitute  a  valid  gift,  there  must  be  some  clear  and 
distinct  act  by  which  the  husband  has  divested  himself  of  the 
property,  and  engaged  to  hold  it  as  trustee  for  the  separate 
use  of  the  wife.  McLean  v.  Longlands,  5  Vesey  78 ;  Mews 
v.  MfW8t  15  Beavan  529  (21  Eng.  Law  and  Eq.  Rep.  556.) 

Applying  these  principles  to  the  case  under  considera- 
tion, I  find  nothing  to  justify  the  claim  of  the  wife  to  have 
this  property  treated  as  her  separate  estate.  The  hus- 
band bought  the  land,  paid  the  purchase  money,  and  took 
the  title  in  his  own  name.  He  paid  part  of  the  contract 
price  for  building  the  house,  and  gave  a  mortgage  upon 
the  premises  for  the  residue — his  wife,  as  is  usual,  join- 
ing in  the  mortgage.  He  bought  the  shares  of  the  build- 
ing and  loan  association  in  his  own  name ;  he  contributed, 
to  some  extent,  from  the  avails  of  his  labor  toward  the 


408  .  CASES  IN  CHANCERY. 

Skillman  v.  Skillman. 

payment  of  the  debt ;  the  title  remained  in  him  at  his  death. 
The  facts  relied  upon  in  support  of  the  complainant's  claim 
are,  that  the  property  was  purchased  at  her  instance,  to 
secure  a  home  for  herself  and  her  family ;  that  she  made  the 
negotiation  for  the  purchase  ;  that,  by  means  of  her  indus- 
try and  economy,  she  contributed  mainly  toward  the  payment 
of  thte  interest *on  the  debt,  the  monthly  payments  on  the 
shares  of  the  building  association,  and  the  accumulation  of 
means  for  the  extinguishment  of  the  principal.  The  price 
of  the  lot,  and  some  portion  of  the  debt  incurred  in  erecting 
the  building,  it  is  admitted,  were  paid  by  the  husband  ;  and 
if  a  clear  case  of  gift  were  alleged  or  proved,  there  might 
be  serious  difficulty  in  ascertaining  upon  the  case,  as  made 
by  the  bill,  the  precise  extent  of  the  wife's  interest  in  the 
land.  But,  conceding  that  the  wife  had  not  paid  a  part, 
but  the  entire  cost  of  the  land  and  building  from  the 
avails  of  her  industry,  with  the  knowledge  and  approba- 
tion of  the  husband,  the  complainant's  case  is  not  mate- 
rially strengthened.  The  question  still  remains,  did  the 
husband  intend  that  that  property  should  become  the 
separate  property  of  his  wife?  He  approved  of  her  accu- 
mulating 'it,  of  its  being  applied  by  her  to  paying  the 
debt  incurred  in  erecting  the  house,  and  thus  securing  a 
home  for  the  family.  But  the  avails  of  her  labor  were 
his  property,  and  they  were  applied  in  payment  of  his 
debt  and  in  the  extinguishment  of  an  encumbrance  upon 
property,  the  title  to  which  was  in  him.  How,  then,  do 
these  acts  indicate  a  disposition  on  the  part  of  the  hus- 
band to  give  the  property  to  the  wife  as  her  separate 
property  ?  It  presents  the  ordinary  case  of  persons  in  the 
humbler  walks  of  life,  with  limited  means,  securing  for 
themselves  the  comforts  of  a  home  by  the  united  industry 
of  the  husband  and  wife,  or,  it  may  be,  by  -the  industry, 
economy,  and  self-denial  of  the  wife  alone.  However 
strongly  it  may  appeal  to  our  sympathy,  it  affords  no 
ground  upon  which  the  court  can  subvert  the  well-settled 


MAY  TERM,  1861.  409 


Skillman  v.  Skillman, 


rules  of  law,  and  declare  that  the  husband  shall  cease  to  be 
the  owner,  and  become  the  trustee  for  the  benefit  of  his  wife 
of  the  avails  of  her  labor. 

In  JRaybold  v.  Raybold,  8  Harris'  R.  308,  it  was  decided 
that  the  fact  that  real  estate  was  paid  for  with  the  earnings 
and  savings  of  the  wife,  does  not  give  her  a  trust  estate  in 
the  property,  and  that  money  thus  acquired  is  not  the  pro- 
perty of  the  wife  within  the  meaning  of  the  act  relative  to  the 
estates  of  married  women,  but  is  the  property  of  the  husband. 

And  even  where  a  married  woman  carries  on  business  in 
her  own  name,  the  avails  of  the  business  are  not  protected  by 
statutes  similar  to  our  own  in  relation  to  married  women,  but 
they  remain  the  property  of  the  husband,  liable  to  be  seized 
and  taken  in  execution  for  the  payment  of  his  debts.  Lovett 
v.  Robinson,  7  Howai'd 's  Pr.  R.  105  j  Avery  v.  Doane,  3  Am. 
Law  Reg.  229  j  Freeman  v.  Orser,  5  Duer  477. 

The  law,  in  this  respect,  has  been  altered  by  the  recent 
statutes  of  the  State  of  New  York.  Session  Laws,  1860,  chap. 
90,  p.  157. 

Considering  the  complainant's  case  entirely  irrespective  of 
the  conflicting  claim  of  the  husband's  creditor — regarding  it 
as  a  question  solely  between  herself  and  the  heirs  of  her  hus- 
band— there  is  nothing  in  the  case  to  justify  the  court  in 
treating  the  property  as  the  separate  property  of  the  wife,  in 
exclusion  of  the  title  of  the  heir.  The  case  is  much  stronger 
against  the  complainant  when  urged  against  the  rights  of  the 
creditors. 

The  injunction  must  be  dissolred,  and  the  bill  dismissed 
for  want  of  equity. 

In  accordance  with  the  decision  of  the  master  of  the  rolls 
in  Hews  \.  Mews,  15  Beavan  529,  the  bill  is  dismissed  with- 
out costs. 

CITED  tn  Smith  v.  Vredand,  1  C.  E.  Or.  198  ;  Bdford  v.  Crane,  1  C.  E. 
Or.  271 ;  Cramer  v.  Rrford,  2  C.  E.  Or.  380  ;  Quidorl'3  Adm.  v.  Per- 
geaux,  3  C.  E.  Or.  479 ;  Carpenter  v.  Carpenter,  10  C.  E.  Or.  197  ; 
Persona  v.  Person*,  10  0.  E.  Or.  259 ;  Lyina*  v.  Place,  11  C.  E.  Or. 
32  ;  Pete-son,  v.  Mulford,  7  Vr.  487. 


410  CASES  IN  CHANCERY. 

Vanderhaise  y.  Hugues. 


NOEL  VANDERHAISE  vs.  CHARLES  A.  HUQUES  and  others. 

1.  Where  a  deed  of  conveyance,  absolute  in  its  form,  was  made,  and  the 
grantee  executed  a  covenant,  bearing  even  date,  to  re-convey  upon  the 
payment  of  a  certain  sum  within  a  specified  period,  and  it  appeared  that 
the  deed  was  intended   as  a  mortgage   to  secure   certain   loans — Held, 

2.  First.  That  the  grantor  was  entitled  to  redeem. 

3.  Second.  That  the  grantee  of  the  premises  should  account  for  the 
rents. 

4.  Third.    That   credit  should  be  given  to  the  grantee  for  necessary 
repairs,  costs  of  insurance,  and  lasting  improvements,  but  no  allowance 
for  renting  or  taking  care  of  premises. 


Wlnjield,  for  complainant. 
Boyd,  for  defendants. 

THE  CHANCELLOR.  On  the  25th  of  November,  1856, 
Noel  Vanderhaise  and  Maria,  his  wife,  by  deed  of  bargain 
and  sale,  conveyed  to  Charles  A.  Hugues,  the  defendant,  a 
parcel  of  land,  consisting  of  four  adjacent  lots  in  Hudson 
City,  with  the  improvements  thereon.  By  a  covenant,  bear- 
ing even  date  with  the  deed,  Hugues,  the  grantee,  covenanted 
with  the  grantor,  at  the  expiration  of  three  years  from  the 
date  of  the  defeasance,  upon  the  re-payment  by  Vanderhaise 
to  Hugues  of  the  sum  of  $3000,  with  interest  at  seven  per 
cent,  from  the  2d  day  of  October,  then  last  past,  to  re-convey 
the  premises  to  Vanderhaise.  At  the  time  of  the  execution 
of  these  instruments,  Hugues  held  a  bond  and  mortgage  from 
Vanderhaise  upon  the  same  premises  to  secure  the  same 
loan. 

On  the  15th  of  May,  1 858,  Vanderhaise  having  purchased 
of  Charles  Kupner  two  other  lots,  adjoining  the  premises 
conveyed  as  aforesaid  to  Hugues,  for  $350,  and  paid  $100 
on  account,  Kupner  conveyed  the  premises  in  fee  to  Hugues, 
upon  his  paying  $250,  the  balance  of  the  purchase  money. 

It  appears  satisfactorily  by  the  evidence,  that  as-  well  the 


MAY  TERM,  1861.  411 

Vanderhaise  v.  Hugues,. 

sura  of  $250  as  the  sum  of  $3000,  thus  advanced  by 
Hugues,  were  loans  to  Vanderhaise,  and  that  the  deeds 
from  Vanderhaise,  and  from  Ktipner  to  Hugues,  though 
absolute  upon  their  face,  were  intended  as  mortgages  to 
secure  the  re-payment  of  the  said  loans.  This  appears 
clearly  from  the  testimony  of  Hugues  himself,  as  well  as 
from  the  other  evidence  in  the  cause.  There  is  in  truth 
no  conflict  in  the  evidence  in  regard  to  the  material  facts 
upon  which  the  complainant's  title  to  redeem  is  founded. 
The  only  real  controversy  in  the  cause  relates  to  the 
amount  due  to  the  complainant,  and  to  the  allowances  to 
which  he  is  entitled  in  taking  the  account. 

The  defendant  holds  the  legal  title  to  the  premises,  and 
for  a  considerable  period  has  beeu  in  possession,  by  his 
tenant,  and  in  the  receipt  of  the  rents  and  profits. 

The  complainant  is  entitled  to  redeem,  and  to  have  a 
re-conveyance  of  the  premises  conveyed  to  the  defendant, 
by  way  of  mortgage  as  aforesaid,  by  the  complainant  and 
by  Charles  Kupner,  upon  the  payment  of  the  amount  that 
shall  be  found  due  from  the  complainant  to  the  defend- 
ant upon  the  loans  which  the  premises  were  conveyed  to 
secure. 

It  must  be  referred  to  a  master  to  take  an  account  of  the 
amount  due  for  principal  and  interest  upon  the  said  loans 
of  $3000  and  $260,  made  as  aforesaid  by  the  defendant  to 
the  complainant. 

The  master  is  also  to  take  an  account  of  the  rents  and 
profits  of  the  said  premises  which  have  come  to  the  hands 
of  the  defendant,  or  of  any  other  person  by  his  order  or 
for  his  use,  or  which  he,  without  his  willful  default,  might 
have  received,  and  what  shall  be  coming  on  account  of 
the  rents  and  profits  shall  be  deducted  from  the  amount 
found  due  upon  the  mortgage. 

In  taking  the  account  the  master  will  allow — 

1.  Fur  the  amount  advanced  by  the  defendant  to  satisfy 
the  judgment  recovered  by  F.  B.  and  N.  C.  Carj>enter, 
for  a  lien  claim  upon  the  premises  prior  to  the  deeds 


412  CASES  IN  CHANCERY. 

Vanderhaise  v.  Hugues. 

made  to  the  defendant — this  payment  being  necessary  for  the 
protection  of  the  estate. 

2.  Also  for  necessary  repairs  and  lasting  improvements. 

3.  Also  for  the  costs  of  insurance  and  of  advertising  and 
other  expenses  necessarily  or  reasonably  incurred  in  leasing 
the  premises. 

No  allowance  is  to  be  made  to  the  defendant  for  his  ser- 
vices in  renting  or  taking  care  of  the  property. 

In  taking  the  account,  the  master  is  authorized  to  make 
annual  rests,  or  otherwise  to  charge  the  complainant  with  in- 
terest for  advances  made  by  the  complainant,  but  not  so  as  to 
charge  the  complainant  with  compound  interest  either  upon 
the  mortgage  or  upon  the  advances. 

The  evidence  heretofore  legally  taken  and  filed  in  the  cause 
may  be  used  before  the  master,  together  with  such  further 
evidence  as  the  master  may  deem  necessary  or  desirable  to 
ascertain  the  rights  of  the  respective  parties. 

The  evidence  on  the  part  of  the  complainant,  filed  llth 
June,  1861,  does  not  appear  to  have  been  taken  and  returned 
in  compliance  with  the  rules  of  the  court,  nor  does  it  appear 
that  said  evidence  was  given  under  oath  or  subscribed  by  the 
witnesses.  Before  these  depositions  are  received  by  the  mas- 
ter as  evidence,  the  officer  before  whom  the  depositions  pur- 
port to  have  been  taken  should  annex  to  each  of  the  deposi- 
tions a  jurat  properly  signed. 

The  rent  of  the  furniture  or  other  personal  property  upon 
the  mortgaged  premises,  not  being  within  the  original  contract 
of  the  parties  for  the  loan  of  the  money,  will  not  be  included 
in  the  account  of  rents  charged  to  the  defendant ;  but  the 
master  will  ascertain  and  report  the  value  of  the  rents  of  the 
real  estate,  as  distinguished  from  the  rent  of  the  furniture, 
unless  by  the  written  consent  of  both  parties,  or  their  respect- 
ive solicitors,  or  unless  it  shall  be  made  to  appear  in  evidence 
satisfactorily  to  the  master  that  such  allowance  is  in  accordance 
with  the  contract  of  the  parties  subsequently  entered  into. 

The  question  of  costs  and  all  further  equity  and  directions 
are  reserved  till  the  coming  in  of  the  master's  report. 
CITED  in  Elmer  v.  Loper,  19  C.  E.  Or.  482. 


MAY  TERM,  1861.  413 


Holcombe  v.  Executors  of  Holcombe. 


CAROLINE  HOLCOMBE  vs.  THE  EXECUTORS  OF  HOLCOMBE. 

In  case  the  will  directs  the  executors  to  invest  the  residue  of  the  per- 
Ronal  estate,  and  the  interest  to  accrue  thereon,  "in  good  productive  real 
estate  at  their  discretion,"  and  one  of  the  executors,  having  funds  in  his 
hands,  is  prevented  by  the  misconduct  of  his  co-executors  from  making 
the  investment  directed  by  the  will,  it  is  his  duty  to  guard  the  estate  from 
loss  by  applying,  within  a  reasonable  time,  to  the  proper  court  for  instruc- 
tions.   

Wurts,  for  executors. 

J.  F.  Randolph,  for  legatees. 

THE  CHANCELLOR.  By  an  interlocutory  decree  in  th« 
cause,  made  on  the  15th  of  May,  1855,  it  was  referred  to 
one  of  the  masters  of  the  court  to  take  an  account,  among 
other  tilings — 

1st.  Of  all  the  personal  property  of  the  testator  at  th« 
time  of  his  death,  charging  the  executors  with  the  same,  as 
received  by  them  respectively. 

2d.  Of  all  the  personal  property  which  has  come  to  the 
hands  of  the  executors  respectively,  or  which  by  due  dili- 
gence they  might  have  received.  2  Stockt.  393. 

The  master  reports  that,  in  his  opinion,  it  was  the  duty  of 
the  executors,  in  the  exercise  of  due  diligence,  to  collect  the 
interest  moneys  in  arrear,  and  invest  the  same  for  the  benefit 
of  the  estate,  and  that  the  executors  should  be  charged  with 
interest  on  said  moneys,  after  allowing  them  a  reasonable 
time  to  collect  and  invest  the  same,  and  that,  under  the  cir- 
cumstances of  this  case,  eighteen  months  were  ample  time  for 
the  executors  to  collect  and  invest  said  moneys.  He  accord- 
ingly charged  each  executor  with  all  the  interest  accrued 
upon  the  sureties  which  came  to  their  hands,  respectively, 
with  interest  thereon,  commencing  one  year  and  six  months 
from  the  time  it  became  due.  The  report  in  this  particular 
was  confirmed. 

Asher   Reading,   one   of    the   executors,    has   now   exhi- 

"VoL.  II.  2  c 


414  CASES  IN  CHANCERY. 

Holcombe  v.  Executors  of  Holcombe. 

bited  his  final  account  for  settlement,  which  has  been  re- 
ported by  the  master.  He  claims  a  further  allowance 
"than  that  made  by  the  master,  on  the  ground  that,  by  the 
principle  adopted  by  the  master  in  making  his  former  re- 
port, he  has  been  charged  with  several  hundred  dollars 
more  interest  than  he  actually  received. 

There  are  two  decided  objections  to  the  allowance  asked 
for. 

1.  It  is  in  direct  conflict  with  the  principle  adopted  by 
the  master  and  sanctioned  by  the  Chancellor  upon  the  for- 
mer report.     The  principle  was  adopted,  in  the  absence  of 
materials  for  making  the  report  in   all  respects  accurate,  as 
an  approximation  to  the  truth.     In  its  application  it  would 
necessarily  lead    to    an    error    upon    one  side  or  the  other. 
If  it  had  operated  in  favor  of  the  executor,  he  would  have 
had  the  benefit  of  it.     As  it  operates  against   him,  he  can- 
not  now  complain.     His    remedy,  if  he    had    one,  was  by 
applying  to  have  the   report   corrected    before   it  was  con- 
firmed. 

2.  But  it  is  conceded  that  it  is  not  the  principle  adopted 
by  the  master  in    stating    his  account    that    constitutes  the 
ground    of    complaint.       The    real    question    involved    is 
whether   the   executor  was    bound    to  make  an    investment 
or  not  of  the  funds  which  came  to  his  hands.     If  he  was 
not    he   is   clearly    not   chargeable   with    interest.     By    the 
will,  the  executors  were  directed    to  invest   the  residue  of 
his    personal    estate,    with    the   interest   that    might   accrue 
thereon,  "in    good    productive   real    estate  at   their   discre- 
tion."    The    executors   could    not   agree   as   to    the  invest- 
ments   to  be  made  in  real    estate,  in  consequence  of  which 
a  large  amount   remained    for   some  time  in    the  hands  of 
Reading,  as   executor,    uninvested.     On    this   ground    it   is 
insisted   that  inasmuch   as  he  could  not,  in  consequence  of 
the    misconduct   of  his   co-executors,  make  the  investment 
as  directed  by  the  will,  he  was  not  bound  to  invest  at  all, 
and    consequently    is    not   chargeable    with    interest.     It    is 
admitted   that   he  acted    in  good    faith  iu  not    making  the 


MAY  TERM,  1861.  415 

Holoombe  v.  Executors  of  Holcombe. 

investment  in  real  estate,  and  that  his  conduct  in  this  partic- 
ular has  been  sanctioned  and  approved.  Nevertheless  it  was 
his  duty  as  executor,  in  the  exercise  of  due  diligence  in  the 
management  of  the  estate,  as  soon  as  it  was  ascertained  that 
no  investment  could  be  made,  as  directed  by  the  will,  or 
within  a  reasonable  time  thereafter,  to  have  applied  to  the 
court  for  directions  in  making  the  investment.  He  was 
clearly  not  bound  to  incur  personal  responsibility  by  making 
investments  contrary  to  the  directions  of  the  testator;  on  the 
other  hand,  he  was  not  justified,  after  it  was  ascertained  that 
the  directions  of  the  testator  could  not  be  complied  with,  in 
suffering  the  estate  to  lie  unemployed  and  unproductive.  His 
clear  duty  was  to  apply  to  the  proper  court  for  directions 
touching  the  investment.  This  would  have  guarded  the  es- 
tate against  unnecessary  loss,  and  at  the  same  time  have 
shielded  the  executor  from  personal  liability. 
*  The  relief  asked  for  is  denied. 


CAROLINE  HOLCOMBE  vs.  HOLCOMBE'S  EXECUTORS. 

1.  Amount  of  commissions  to  be  allowed  guardian  and  receivers. 

2.  A  trustee  has  no  right   to  subject  the  trust   fund  unnecessarily  to 
charges  for  counsel  fees. 

THE  CHANCELLOR.  On  the  10th  of  May,  1860,  the  guar- 
dian settled  his  accounts  up  to  that  date.  He  then  claimed 
a  very  liberal  allowance  for  his  services.  Upon  represen- 
tations made  to  the  court  that  the  circumstances  were 
peculiar,  and  that  the  claim  was  acquiesced  in  by  all  the 
parties  interested,  the  claim  was  allowed.  He  now  claims 
one  hundred  dollars  additional  commissions,  equal  to 
about  twelve  per  cent,  on  the  amount  received  and  paid 
out  since  the  former  settlement.  It  is  manifest,  on  the 
face  of  the  accounts,  that  there  is  no  ground  for  this 


416  CASES  IN  CHANCERY. 

Holcombe  v.  Executors  of  Holcombe. 

claim  and  no  justification  for  its  allowance.  The  guardian 
has  been  put  to  no  trouble,  encountered  no  difficulty,  incur- 
red no  risk.  He  has  simply  received  ($850)  eight  hundred 
and  fifty  dollars  from  the  receivers  of  the  estate,  and  paid  it 
over  as  received  to  his  ward.  He  has  not  even  been  at  the 
trouble  of  disbursing  it.  Twenty-five  dollars  are  allowed  as 
commissions.  This  is  nearly  three  per  cent,  upon  the  total 
amount  of  disbursements,  including  the  balance  from  last  set- 
tlement, upon  which  commissions  have  already  been  allowed. 
Two  per  cent,  is  the  highest  rate  allowed  by  law  to  commis- 
sioners, sheriffs  and  other  officers  for  receiving  and  paying 
over  the  proceeds  of  sales  of  real  estate.  It  is  the  highest 
rate  allowed  by  law  in  New  York  to  executors. 

While  this  might  not  be  an  adequate  compensation  for  the 
ordinary  duties  of  guardian,  it  affords  a  fair  standard  by 
which  to  gauge  the  measure  of  compensation  to  which  the 
guardian  in  this  case  is  entitled  for  services  performed  during 
the  past  year. 

There  is  also  a  charge  in  the  account  for  cash  paid  attorney, 
$20.50.  On  the  last  settlement,  counsel  and  attorney's  fees 
were  allowed  up  to  the  date  of  the  settlement.  There  is 
nothing  in  the  account  since  to  require  or  justify  the  services 
of  counsel  or  attorney.  A  trustee  has  no  right  to  subject  the 
trust  fund  unnecessarily  to  charges  for  counsel  and  attorney's 
fees.  Where  the  services  of  counsel  are  required,  some  dis- 
cretion must  be  allowed  the  trustee  as  to  the  amount  of  com- 
pensation ;  but  the  mere  fact  that  a  trustee  has  paid  fees  to 
an  attorney  or  counsel  will  not  of  itself  be  a  warrant  for  the 
allowance,  especially  where  it  is  obvious  that  there  could  be 
no  occasion  for  their  services. 

The  report  must  be  corrected  accordingly. 


MAY  TERM,  1861.  417 


Holcombe  v.  Executors  of  Holcombe. 


SAME  CASE. — In  matter  of  receivers'  accounts. 

The  only  matter  left  open  npon  the  master's  report,  is 
the  amount  of  commissions  to  which  the  receivers  are  enti- 
tled. 

They  were  appointed,  by  a  decree  of  this  court,  on  the  30th 
of  October,  1857,  in  the  stead  of  two  of  the  executors  of  John 
Holcombe,  deceased,  who  were  removed  from  office.  They 
were  appointed  as  receivers  and  co-trustees,  with  the  other 
executor,  under  the  will  of  the  testator,  and  entered  upon  the 
duties  of  their  office  on  the  9th  of  November,  1857. 

Their  first  account  was  exhibited  on  the  27th  December, 
1858,  and  included  their  claim  for  services  up  to  that  date. 

On  the  26th  of  June,  1860,  they  exhibited  their  second 
account,  and  asked  a  further  allowance  for  their  services,  at 
the  rate  of  §500  per  annum,  each.  The. consideration  of  the 
subject  of  such  further  allowance,  was  reserved  until  the  final 
settlement  of  the  receivers'  accounts.  They  have  now  exhib- 
ited their  final  account,  and  ask  an  allowance  of  commissions 
at  the  same  rate  as  suggested  in  the  last  report. 

The  subject  of  the  proper  allowance  to  the  receivers,  was 
reserved,  on  the  former  settlement  of  the  accounts,  on  the 
ground  that  the  legatee  of  the  estate,  and  the  only  party 
immediately  interested  in  the  settlement  of  the  accounts,  was 
then  a  minor  ^jyer  twenty  years  of  age,  and  it  was  desired 
that  she  should  be  heard,  personally  or  by  counsel,  in  regard 
to  the  allowance  after  she  attained  her  majority.  In  this 
Lope,  the  court  has  been  disappointed.  The  subject  has  been 
referred  to  the  court  for  its  decision,  without  a  suggestion 
from  counsel,  or  any  further  aid  or  assistance  that  can  be 
derived  from  the  accounts  themselves. 

The  high   character   of  the   receivers,  and   the   acknow- 


418  CASES  IN  CHANCERY. 

Holcombe  v.  Executors  of  Holcombe. 

ledged  fidelity  with  which  they  have  executed  their  trust, 
have  disposed  the  court  to  make  a  just  and  full  allowance 
for  their  services. 

During  the  first  year  of  the  services  of  the  receivers,, 
their  duties  were  delicate,  arduous,  and  responsible.  They 
asked,  on  these  and  other  grounds,  extraordinary  com- 
pensation. The  allowance  was  made  to  the  full  extent  of 
their  request.  The  grounds  of  the  allowance  are  not 
stated  in  the  order.  It  was  obviously  made  under  pecu- 
liar circumstances,  and  was  certainly  characterized  by  lib- 
erality. 

Since  that  settlement,  there  is  nothing  in  the  accounts 
indicating  anything  peculiar  in  the  duties  or  services  of 
the  receivers.  The  protracted  and  embarrassing  litiga- 
tion in  which  the  estate  had  been  involved,  had  been 
brought  to  a  close.  Nothing  remained  to  be  done  bat  to 
take  charge  of  the  trust  estate  and  to  dispose  of  the  in- 
come, under  the  provisions  of  the  will,  or  in  pursuance  of 
the  order  of  the  court.  They  are  precisely  the  duties 
which  devolve  upon  trustees  and  executors  under  a  will 
of  real  and  personal  estate,  wherever  the  property  is  placed 
under  the  charge  of  executors.  The  receivers  were,  in 
fact,  appointed  in  the  place  of  executors  named  iu  the 
will. 

On  their  first  settlement,  there  was  a  balance  in  their 
hands,  of  $648.12.  They  have  since  received,  from  all 
sources,  $17,643.83,  making  an  aggregate  of  $18,291.95. 
They  have  disbursed  $14,709.49,  including  their  own 
commissions,  on  the  first  settlement.  If  these  be  de- 
ducted, their  entire  disbursements  are  But  $12,442.85. 
The  sum  claimed  is  in  the  form  of  a  yearly  allowance  to 
each  of  the  receivers.  It  amounts  to  over  thirteen  per 
cent,  upon  the  total  receipts.  Now,  as  has  been  said, 
there  is  nothing  to  distinguish  the  services  of  these  re- 
ceivers from  those  of  other  testamentary  trustees.  Had 
they  been  appointed  by  the  will  of  the  testator,  instead  of 
by  this  court,  the  total  amount  of  commissions  to  which 


MAY  TERM,  1861.  419 

Holcombe  v.  Executors  of  Holcorabe. 

they  would  have  been  entitled  under  the  act  of  1855,  (Nix. 

Dig.  562,  §  57,)  would  have  been  but  $532.87,  viz. : 

On  §1000,  7  per  cent., $7000 

"      4000,  4       "  160  00 

"      5000,  3       "  150  00 

"      7643.83,  2  per  cent,, 15287 


$532  87 

It  is  conceded  that  the  receivers  were  not  appointed  under 
this  act,  nor  is  this  court  controlled  in  making  the  allowance 
by  its  terms:  still  it  affords  a  criterion  by  which,  at  least  in 
the  judgment  of  the  legislature,  the  value  of  these  services 
may  be  estimated. 

By  the  law  of  New  York,  receivers  appointed  in  chan- 
cery upon  the  dissolution  of  a  corporation  are  entitled 
(over  their  disbursements)  to  such  commissions  as  the 
'Court  may  allow,  not  exceeding  the  sum  allowed  by  law 
to  executors  or  administrators.  2  Rev.  St.  467,  §  76.  The 
fees  allowed  to  executors  and  administrators  are  much 
less  than  those  allowed  by  our  act  of  1855.  Edwards  on 
Receivers  176. 

This  is  a  lower  rate  of  compensation  than  has  been 
usually  allowed  to  executors  and  administrators  in  this 
state  or  to  receivers  in  this  court.  I  know  of  no  fairer  or 
more  equitable  mode  of  making  compensation  to  these 
receivers  than  to  deal  with  them  as  trustees  under  a  will 
or  as  executors  having  real  and  personal  estate  in  charge. 
Their  duties  and  their  responsibilities  are  identical.  They 
are  in  ract  standing  in  the  shoes  of  the  executors.  The 
average  allowance  for  many  years,  so  far  as  my  knowledge 
extends,  upon  estates  exceeding  $5000,  has  been  about  five 
per  cent.  In  this  case  an  additional  allowance  is  made  to 
the  receivers  of  $12UO.  This  is  something  over  six  per 
cent,  upon  the  total  amount  of  funds  in  the  hands  of  the 
receivers  since  their  first  settlement.  The  allowance  is 
made  thus  large  in  view  not  only  of  the  nature  of  their 


420  CASES  IN  CHANCERY. 

Jersey  City  v.  City  of  Hudson. 

duties,  but  of  the  fidelity  and  diligence  with  which  the  trust 
has  been  executed.  It  must  be  understood  that  this  allow- 
ance includes  a  compensation  for  all  their  services  until  the 
property  shall  be  transfered,  pursuaut  to  the  order  of  the 
court. 


THE  WATER  COMMISSIONERS  OF  JERSEY  CITY  vs.  THE 
MAYOR  AND  COMMON  COUNCIL  OF  THE  CITY  OF 
HUDSON. 

1.  A  water  company,  authorized  by  legislative  enactment  to  use  the  soil 
under  the  public  roads  for  the  purpose  of  constructing  their  works,  having 
laid  their  pipes  across   the  street  of  a  city,  will  be  compelled  to  lower 
them  so  as  to  conform  to  a  new  grade  established  by  municipal  authority. 

2.  No  public  right  can  be  taken  away  by  mere  inference  or  legal  con- 
struction— it  can  only  be  by  express  grant. 

3.  Equity  will  not  interfere  by  injunction  to  redress   public  nuisances 
where  the  object  sought  can  be  attained  in  the  ordinary  tribunals. 


McClelland  and  Zabriskie,  for  complainants. 
Vroom  and  Scudder,  for  defendants. 

THE  CHANCELLOR.  By  an  act  of  the  legislature,  approved 
on  the  25th  of  March,  1852,  entitled  "An  act  to  authorize  the 
construction  of  works  for  supplying  Jersey  City  and  places 
adjacent  with  pure  and  wholesome  water,"  the  mayor  and 
common  council  of  Jersey  City  were  authorized  to  take  and 
convey  into  Jersey  City,  and  places  adjacent  thereto,  such  por- 
tion of  the  water  of  the  Passaic  river,  flowing  between  the  vil- 
lages of  Acquackanonck  and  Belleville,  as  might  be  required 
to  furnish  the  inhabitants  with  a  supply  of  pure  and  whole- 
some water.  All  authority  granted  by  the  act,  it  is  directed, 
shall  be  exercised  by  and  through  a  board  of  commissioners. 
The  commissioners  are  authorized  to  take  and  hold  any  lands 


MAY  TERM,  1861.  421 

Jersey  City  v.  City  of  Hudson. 

or  other  real  estate  necessary  for  the  construction  of  any 
canals,  aqueducts,  reservoirs,  or  other  works  for  convey- 
ing or  containing  water,  or  for  the  erection  of  any  build- 
ings or  machinery,  or  for  laying  any  pipes  or  conduits  for 
conveying  water,  and  to  do  any  other  act  necessary  for 
accomplishing  the  purposes  contemplated  by  the  act.  And 
by  the  6th  section  it  is  enacted,  "  that  the  commissioners  in 
behalf  of  the  mayor  and  common  council  of  Jersey  City 
shall  have  the  right  to  use  the  ground  or  soil  under  any 
roads,  railroad,  highway,  street,  lane,  alley,  or  court  within 
this  state  for  the  purpose  of  constructing  the  works  contem- 
plated by  this  act,  on  condition  that  they  shall  cause  the 
surface  of  such  road,  railroad,  highway,  &c.,  to  be  restored 
to  its  original  state,  and  all  damages  done  thereto  to  be  re- 
paired, and  all  damages  to  any  company,  by  any  interrup- 
tion of  travel  while  the  work  is  constructing,  to  be  repaid 
to  .them." 

In  pursuance  of  the  powers  thus  conferred,  the  water 
commissioners  of  Jersey  City  caused  the  necessary  works 
to  be  constructed,  and  by  means  thereof  are  now  supply- 
ing the  inhabitants  of  Jersey  City  and  Hoboken  with 
water.  Among  other  works,  they  caused  to  be  con- 
structed in  the  township  of  North  Bergen,  which  is  now 
embraced  within  the  limits  of  the  city  of  Hudson,  a  reser- 
voir and  pipes  leading  from  thence  through  a  street  there- 
tofore dedicated  to  the  public  use,  and  now  known  as 
Madison  avenue.  The  pipes  were  laid  in  the  year  1854, 
in  compliance  with  the  directions  of  the  act,  three  feet 
below  the  surface  of  the  soil,  and  are  now  used  for  the 
purpose  of  conducting  the  water  from  the  reservoir  to 
Jersey  City  and  Hoboken. 

The  bill  charges  that  the  municipal  authorities  of  Hud- 
son City,  which  was  incorporated  on  the  llth  of  April, 
1855,  and  certain  other  persons  pretending  to  act  by  virtue 
of  authority  given  them  by  said  city,  have  recently  exca- 
vated the  soil  on  each  side  of  the  pipes  at  the  junction  of 
Madison  avenue  and  Montgomery  avenue,  in  Hudson 


422  CASES  IN  CHANCERY. 

Jersey  City  v.  City  of  Hudson. 

City,  and  threaten  to  blast  the  rocks  near  and  under  the 
pipes,  and  that,  if  permitted  to  do  so,  the  pipes  will  be  de- 
stroyed, the  supply  of  water  cut  off,  and  irreparable  injury 
done  to  the  works  of  the  complainants ;  that  by  reason  of 
the  excavation  already  made,  the  pipes  are  placed  in  a  condi- 
tion exceedingly  unsafe  and  liable  to  injury.  The  complain- 
ants ask  an  injunction  to  restrain  the  corporation  of  Hudson 
City,  and  their  agents,  from  excavating  around  or  under  the 
pipes  of  the  complainants,  or  from  blasting  rocks  within 
sixty  feet  of  the  same. 

The  material  charges  of  the  bill  are  admitted  by  the 
answer,  except  so  far  as  relates  to  a  purpose  on  the  part 
of  the  defendants  to  injure  or  destroy  the  works  of  the 
complainants,  which  is  fully  and  expressly  denied.  The 
answer  alleges  that  the  work  which  forms  the  subject  of 
complaint,  and  which  the  injunction  is  designed  to  arrest, 
consists  in  the  grading  of  Montgomery  avenue,  a  public 
street  in  Hudson  City,  by  the  municipal  authority  of  said 
city,  by  virtue  of  powers  vested  in  them  for  that  purpose ; 
that  the  grade  of  the  street,  as  established  at  the  intersec- 
tion of  Montgomery  and  Madison  avenues,  requires  that 
the  pipes  of  the  complainants  should  be  placed  at  a  lower 
level,  and  that,  if  they  remain  in  their  present  position, 
they  will  create  an  obstruction  and  nuisance  in  the  high- 
way. 

The  case  thus  presented  is  briefly  this.  The  water 
commissioners  of  Jersey  City,  in  the  construction  of  their 
water  works,  laid  their  main  pipe  from  the  reservoir  to 
the  city,  through  Madison  avenue,  now  one  of  the  public 
streets  of  Hudson  City.  The  work  was  done  in  pursuance 
of  express  legislative  authority  for  that  purpose.  Hudson 
City  was  incorporated  since  the  water  works  were  con- 
structed. The  city  authorities,  in  grading  their  streets 
in  pursuance  of  powers  conferred  by  the  charter,  have  so 
fixed  the  grade  of  Montgomery  avenue,  where  it  crosses 
Madison  avenue,  that  a  portion  of  the  pipe  is  above  the 
level  of  the  street.  The  grade  must  either  be  abandoned 


MAY  TERM,  1861.  423 

Jersey  City  v.  City  of  Hudson. 

or  the  pipe  lowered.  The  pipe,  where  it  crosses  Montgomery 
avenue,  is  laid  on  solid  rock,  and  the  change  of  level  will 
involve  serious  expense.  By  whom  must  this  expense  be 
Borne,  if  the  level  of  the  pipes  must  be  changed  ? 

It  is  a  principle  too  clear  to  admit  of  discussion,  that 
the  legislative  grant  of  powers  and  privileges  to  the  water 
commissioners  of  Jersey  City  can  be  in  no  wise  impaired  or 
annulled  by  the  subsequent  incorporation  of  Hudson  City 
or  the  grant  of  conflicting  powers.  If  the  grants  are  so  con- 
flicting that  both  cannot  be  exercised,  the  prior  grant  must 
prevail.  If  the  grade  adopted  by  Hudson  City  for  one  of 
its  streets  be  such  as  necessarily  to  destroy  works  erected 
under  the  sanction  of  the  legislature,  the  grade  must  be  aban- 
doned. If  both  grants  may  be  exercised,  each  party  must 
BO  use  its  rights  as  not  to  interfere  with  the  exercise  of  the 
rights  of  the  other. 

.  What,  then,  is  the  right  conferred  by  the  legislature 
upon  the  complainants?  It  is,  in  the  language  of  the  act, 
"  to  use  the  ground  or  soil  under  any  road,  railroad,  high- 
way, street,  lane,  alley,  or  court  within  this  state  for  the 
purpose  of  constructing  the  works  contemplated  by  the 
act."  It  is  obvious  that  the  right  granted  is  to  be  exer- 
cised in  subordination  to  the  public  right  of  way.  It  was 
not  intended  to  impair  the  public  easement  or  the  control 
of  the  public  authorities  over  it.  The  grant  is  made  on 
the  express  condition  that  they  should  cause  the  surface 
of  the  highway  or  street  to  be  restored  to  its  original 
sstate,  and  that  all  damage  done  thereto  should  be  re- 
paired. It  legalizes  the  breaking  up  of  the  surface  of  the 
highway  and  the  partial  and  temporary  obstruction  of 
public  travel  for  the  necessary  construction,  alteration 
and  repair  of  the  water  works.  To  this  extent  it  relieves 
the  commissioners  from  all  liability  to  the  public  or  indi- 
viduals for  trespass  or  nuisance;  but,  beyond  this,  it  con- 
fers no  right  as  against  the  public,  much  less  was  it 
designed  to  interfere  with  the  right  of  private  property  in 
the  soil  under  the  highway.  The  public  have  au  ease- 


424  CASES  IN  CHANCERY. 

Jersey  City  v.  City  of  Hudson. 

ment  in  the  soil — a  right  of  way  upon  its  surface.  The 
commissioners,  by  consent  of  the  landholders,  express  or 
implied,  have  also  an  easement — the  right  of  laying  pipes 
under  the  surface.  The  legislature  concede  to  the  owner's 
of  the  latter  easement,  for  the  purpose  of  its  advantageous 
exercise,  limited  and  temporary  interference  with  the 
public  easement.  This  is  the  full  extent  of  the  legislative 
grant. 

But  it  is  urged  that  the  right  of  the  commissioners  to 
have  their  water  pipes  under  the  streets  is  property, 
which  cannot  be  taken  from  them  except  in  the  mode 
pointed  out  by  the  constitution,  viz.,  by  making  compen- 
sation. Let  it  be  granted  that  the  right  to  lay  the  pipes 
under  the  streets,  and  to  keep  them  there  when  laid,  is  a 
right  of  property  which  cannot  be  constitutionally  in- 
vaded without  compensation,  the  question  still  recurs, 
what  is  the  limit  of  that  right?  If  the  grant  to  the  com- 
missioners had  been  to  place  and  keep  their  pipes  three 
feet  under  the  surface  of  the  soil,  as  it  existed  at  the  time 
of  the  construction  of  the  works,  there  might  be  force  in 
the  argument.  But  that  is  not  in  the  terms  of  the  grant. 
All  that  is  granted  is  a  right  to  place  and  keep  the  pipes 
under  the  highway.  The  owner  of  the  soil  has  a  common 
law  right  to  the  use  and  enjoyment  of  the  soil  under  the 
highway.  He  may  open  a  mine,  construct  vaults  or 
chambers,  erect  machinery,  lay  water  pipes,  or  exercise 
any  other  right  of  ownership  in  the  soil  not  inconsistent 
with  the  public  easement.  But  all  these  rights  are  held 
and  must  be  enjoyed  in  subordination  to  the  public  right 
of  way,  including  the  right  of  construction,  alteration, 
and  repair.  It  cannot  be  successfully  maintained  that  a 
mere  easement  in  the  land,  though  enjoyed  and  exercised 
by  legislative  sanction,  can  be  a  more  sacred  right  of 
property  in  the  eye  of  the  constitution  than  the  right  of  the 
landholder  himself.  It  must  be  held — (and  such  must  be 
the  construction  of  the  legislative  grant) — in  subordination 
to  the  public  easement. 


MAY  TERM,  1861.  425 

Jersey  City  v.  City  of  Hudson, 

No  public  right  can  be  taken  a  way  by  mere  inference 
or  legal  construction.  It  can  only  be  by  express  grant. 
The  legislature  have  not  in  express  terras,  by  their  grant 
to  the  commissioners,  deprived  the  public  authorities  of 
their  control  over  the  highway  in  which  the  water  pipes 
should  be  laid,  nor  is  it  by  any  means  a  necessary  inference 
from  the  grant. 

The  authorities  of  Hudson  City  have  an  unquestioned 
right,  in  the  exercise  of  their  municipal  powers,  to  grade 
the  street  in  question  in  the  manner  proposed.  If  the 
work  is  executed,  the  pipes  are  left  not  where  the  legisla- 
ture authorized  them  to  be,  below  the  surface  of*  the 
street,  but  above  it.  They  become  a  public  nuisance,  and 
must  be  removed.  But  by  whom  ?  Clearly  at  the  ex- 
pense of  the  water  commissioners  $  and  if  regard  be  had 
to  economy  or  safety,  it  must  be  under  their  control  and 
the  inspection  of  their  engineer  or  superintendent.  If 
they  refuse  or  neglect  to  interfere,  it  will  then  be  the 
right  and  the  duty  of  the  authorities  to  remove  them, 
doing  no  unnecessary  injury  to  the  property  of  the  com- 
plainants. It  is  not  seriously  denied  that  the  authorities 
of  Hudson  City  have  the  right  of  grading  the  street j  but 
it  is  urged  that  the  labor  and  expense  of  lowering  the 
pipes  must  be  borne  by  them.  This  is  clearly  a  mistake, 
as  will  be  obvious  from  a  simple  consideration.  If  the 
land  under  the  pipes  consisted  of  soil  which  might  be  re- 
moved without  injury  to  the  pipes,  the  grade  of  the  street 
might  be  completed  without  any  disturbance  of  or  imme- 
diate injury  to  the  property  of  the  complainants.  But  the 
pipes  have  now  become  an  obstruction  in  the  highway 
and  a  public  nuisance.  They  are  not  where  the  act  re- 
quires that  they  should  be  placed,  beneath  the  surface  of 
the  soil.  They  are  moreover  exposed  to  injury  and  de- 
struction from  frost  and  from  the  effects  of  public  travel. 
Is  it  not  clearly  the  duty  of  the  commissioners  to  abate  the- 
nuisance,  and  protect  their  property  by  removing  it  out  of 
the  highway? 


426  CASES  IN  CHANCERY. 

Jersey  City  v.  City  of  Hudson. 

It  is  admitted  that  the  pipes  may  be  lowered  without 
injury  to  the  works.  This  has  already  been  done  by  the 
complainants  at  another  point  within  the  city  of  Hudson, 
under  similar  circumstances.'  The  grading  of  the  street 
does  not  necessarily  involve  either  the  destruction  of  or  irre- 
parable injury  to  the  complainants'  works.  It  is  a  mere 
question  of  time  and  expense. 

The  court,  in  deciding  this  question,  cannot  assume 
that  the  authorities  of  Hudson  City  will,  by  themselves, 
or  their  agents,  so  execute  the  work  as  to  destroy  or 
unnecessarily  to  endanger  the  property  of  the  commis- 
sioners. It  would  be  wrong  to  act  upon  the  assumption 
that  they  will  destroy  or  unnecessarily  injure  a  work 
essential  to  the  comfort,  health  and  safety  of  two  cities, 
including  a  population  of  nearly  50,000  inhabitants.  Such 
purpose  is  expressly  denied  by  the  defendants'  answer. 
If  no  higher  considerations  controlled  the  defendants,  a 
regard  to  their  own  interests,  it  would  seem,  must  do  so. 
All  willful  or  malicious  diversions  of  the  water  from  the 
complainants'  works,  or  destruction  or  injury  of  the 
aqueducts,  pipes  or  machinery  used  for  procuring  or  dis- 
tributing the  water,  subjects  the  perpetrators,  their  aiders 
or  abettors,  not  only  to  the  payment  of  the  damages,  but 
to  indictment  and  punishment  by  fine  and  imprisonment. 
(Pamph.  L.j  1852,  §  21.)  Though  the  jurisdiction  of 
courts  of  equity  to  redress  public  nuisances  by  injunction 
is  of  ancient  date,  and  seems  clearly  established,  yet,  as  a 
general  rule,  equity  will  not  interfere  where  the  object  sought 
can  be  as  well  attained  in  the  ordinary  tribunals.  Attorney- 
General  v.  New  Jersey  Railroad  and  Transportation  Com- 
pany, 2  Green's  Ch.  R.  136,  139,  note. 

The  difficulty  between  the  parties  has  obviously  origi- 
nated in  a  question  of  right,  which  it  was  proper  should 
be  settled  before  either  party  had  compromised'  the  inter- 
ests of  their  eonstitutents.  The  delay  of  the  complainants 
:  to  remove  their  pipes  must  be  attributed  to  this  motive. 
The  right  being  decided,  reasonable  time  should  be 


MAY  TERM,  1861.  427 

Hoboken  Building  Association  v.  Martin. 

afforded  them  to  remove  their  property  before  the  defendants 
proceed  with  the  work  of  grading  the  street. 

The  injunction  is  denied,  and  the  rule  to  show  cause  dis- 
charged, with  costs.  The  bill  will  be  retained,  and  if,  con- 
trary to  the  anticipations  of  the  court,  any  attempt  should  be 
made  or  threatened,  on  the  part  of  the  defendants,  to  imperil 
the  safety  of  the  works  (the  complainants  using  due  diligence 
to  effect  the  necessary  alteration  of  the  level  of  the  pipes),  a 
renewal  of  the  motion  for  an  injunction  will  be  entertained. 
The  importance  and  necessity  of  the  complainants'  works  are 
such  to  the  well-being  of  a  large  community,  that  the  author- 
ity of  the  court  should  be  exercised  to  the  fullest  extent,  for 
their  preservation. 

The  opinion  is  limited  exclusively  to  the  case  made  by  the 
bill,  viz.,  the  interference,  by  the  defendants,  with  the  pipes 
of  the  complainants,  laid  under  a  public  street  by  legislative 
authority.  An  interference  with  the  property  of  the  com- 
plainants, in  land  to  which  they  have  acquired  title,  occupied 
by  their  reservoirs  or  aqueducts,  presents  other  and  very  differ- 
ent questions,  in  no  wise  affected  by  the  present  decision. 


THE  HOBOKEN  BUILDING  ASSOCIATION  vs.  MARTIN  and 

wife. 

1.  A  contract  is  not  void  because  the  corporation  with  which  it  is  made 
is  misnamed  therein.  . 

2.  Where  the  complainant,  being  a  corporation,  sues  by  a  wrong  name, 
the  bill  may  be  amended,  in  this  respect,  at  the  hearing, 

3.  The  stockholders  compose  the  corporation,  and  a  mere  failure  to  eject 
officers  at  the  time  designated,  will  not  work  a  dissolution. 

4.  The  complainants,  a  building  association,  received  from  the  defendant 
his  bond  and  mortgage,  reciting  that  he  was  a  shareholder  iii  said  building 
association,  and  had  agreed  to  accept,  and  had  received  from  said  corpora- 
tion $400,  at  the  date  of  the  bond,  "upon  and  for  the  redemption  of 


428  CASES  IN  CHANCERY. 

Hoboken  Building  Association  v.  Martin. 

number  69,  being  the  sum  lent  or  offered  to  be  received  by  him  therefor." 
The  condition  of  the  bond  was  as  follows:  "  Now,  if  the  said  A.  W.  M., 
Ac.,  shall  pay  to  the  said  H.  B.  Association,  number  one,  upon  said  share, 
the  sum  of  $7,  on  the  third  Monday  of  each  month  thereafter,  for  the 
period  of  ten  years  from  the  date  hereof,  or  until  the  surplus  assets  of  said 
corporation  shall  be  sufficient,  over  and  above  all  its  debts  and  liabilities, 
to  pay  on  each  unredeemed  share,  to  the  holder  thereof,  the  sum  of  §S," 
Ac.  Held— 

5.  First.  That  the  failure  of  other  shareholders  to  pay  their  monthly 
dues,  afforded  no  defence  to  a  suit  for  the  foreclosure  of  said  mortgage. 

6.  Second.  That  the  contract  was  in  accordance  with  the  charter  of  the 
corporation,  and  was  not  usurious. 

7.  Third.  That  an  agreement  made  by  all  the  parties  in  interest,  that 
the  affairs  of  the  company  should  be  wound  up,  and  that  the  owners  of 
the  unredeemed  shares  should  receive  the  sums  they  had  advanced,  with 
interest,  and  that  the  owners  of  the  redeemed  shares,  who  had  given  mort- 
gages for  the  price  of  redemption,  should  be  discharged,  upon  paying  the 
amount  of  their  mortgages,  with  interest,  was  valid,  and  should  be  enforced. 


Zabriakie,  for  complainants. 
Lyons  and  Weart,  for  defendants. 

THE  CHANCELLOR.  The  complainants  are  a  corporation, 
organized  under  the  provisions  of  the  "act  to  encourage  the 
establishment  of  mutual  loan  and  building  associations," 
approved  February  28th,  1849.  Nix.  Dig.  84.  The  bill  is 
filed  to  foreclose  a  mortgage  given  by  the  defendant,  a  mem- 
ber of  the  association,  to  secure  the  payment  of  a  bond,  made 
pursuant  to  the  provisions  of  the  constitution  and  by-laws  of 
the  association. 

The  bond  recites  that  the  obligor  is  a  shareholder  in 
said  building  association,  and  has  agreed  to  accept,  and 
has  received  from  said  corporation,  the  sum  of  four  hun- 
dred dollars,  at  the  date  of  the  bond,  "  upon  and  for  the 
redemption  of  number  69,  being  the  sum  lent  or  offered 
to,  be  received  by  him  therefor."  The  condition  of  the 
bond  is  as  follows:  "Now,  if  the  said  Adolphe  W.  Martin, 
his  heirs,  executors,  administrators,  or  assigns,  shall  pay 
to  the  said  The  Hoboken  Building  Association,  number 
one,  upon  said  share,  the  sum  of  seven  dollars  on  the 


MAY  TERM,  1861.  429 

Hoboken  Building  Association  v.  Martin. 

third  Monday  of  eacli  month  thereafter,  for  the  period  of  ten 
years  from  the  date  hereof  or  until  the  surplus  assets  of  said 
corporation  shall  be  sufficient,  over  and  above  all  its  debts 
and  liabilities,  to  pay  on  each  unredeemed  share,  to  the 
holder  thereof,  the  sum  of  eight  hundred  dollars;  and  if 
the  said  Adolphe  W.  Martin  shall  also  pay  to  the  said  cor- 
poration all  fines  and  forfeitures  that  may  be  imposed  upon 
or  suffered  by  him  under  and  by  virtue  of  the  constitution, 
by-laws  and  regulations  of  the  said  the  Hoboken  Building 
Association,  number  one,  then  the  above  obligation  to  be 
void." 

The  execution  of  the  bond  and  mortgage  is  admitted. 

The  first  ground  of  defence  is,  that  the  complainants 
have  sued  by  a  wrong  corporate  name.  The  corporate 
name  is  erroneously  stated,  both  in  the  bond  and  in  the 
complainants'  bill.  But  there  is  no  question  as  to  the 
identity  of  the  person,  nor  that  the  complainants  are  the 
obligees  in  the  bond.  The  defendant  admits  it,  both  in  his 
answer  and  in  his  evidence.  If  the  name  given  sufficiently 
designates  the  corporation,  the  contract  cannot  be  avoided  for 
the  misnomer.  1  Penn.  115,  501  ;  Inhabitants  of  Upper 
Alloways  Creek  v.  String,  5  Halst.  323 ;  Ang.  and  Ames  on 
Corp.,  §§  647. 

The  objection  to  the  bill  is  not  raised  by  plea.  The  bill 
may  be  amended  by  inserting  the  true  name  of  the  corpora- 
tion and  introducing  the  proper  averment,  in  pursuance  of 
the  motion  made  at  the  hearing. 

The  second  ground  of  the  defence  is,  that  the  corporation 
is  dissolved,  no  officers  having  been  duly  elected  according  to 
the  requirements  of  the  constitution.  But  the  stockholders 
compose  the  corporation,  and  a  mere  failure  to  elect  officers  at 
the  time  designated  will  not  work  a  dissolution.  Ang.  and 
Ames  on  Corp.,  §§  144,  771. 

Nor  will  this  court,  in  an  action  by  the  corporation 
against  its  debtor,  look  into  the  regularity  or  validity  of 
the  election  of  the  corporate  officers.  That  question  can- 
not be  thus  tried  collaterally.  Where  the  fact  of  iudebt- 

YOL.  II.  2  D 


430  CASES  IN  CHANCERY. 

Hoboken  Building  Association  v.  Marti-n. 

edness  is  established,  a  very  clear  case  should  be  made  out  to 
enable  the  debtor  to  escape  liability  on  the  ground  that  the 
corporation  has  ceased  to  exist. 

The  third  ground  of  defence  is,  that  the  defendant  is 
relieved  from  liability  by  reason  of  the  refusal  of  other 
members  of  the  corporation  to  pay  their  monthly  dues. 
This  defence  rests  upon  the  idea  that,  by  the  terms  of  the 
bond,  the  defendant  is  to  continue  to  pay  his  monthly 
installments  until  the  surplus  assets,  after  discharging  all 
liabilities,  are  sufficient  to  pay  to  the  holder  of  each  unre- 
deemed share  the  sum  of  $800,  and  that  the  failure  of 
others  to  contribute  necessarily  postpones  the  accomplish- 
ment of  that  object,  and  thus  unlawfully  increases  the 
extent  of  the  defendant's  liability.  But  the  defendant's 
obligation  to  pay  is  absolute.  By  the  terms  of  his  bond, 
he  assumes  the  hazard  of  all  losses  sustained  by  the  cor- 
poration, either  by  fraud,  accident,  or  the  defalcation  of 
its  members.  Every  shareholder  must  of  necessity  incur 
that  hazard.  He  cannot  escape  the  hazard,  nor  can  his 
liability  to  loss  be  diminished  by  entering  into  an  obligation 
and  giving  security  for  the  payment  of  his  dues  to  the  cor- 
poration. 

The  fourth  ground  of  defence  is,  that  the  contract  is 
usurious.  The  defendant,  by  the  terms  of  his  contract, 
engaged  to  pay  for  the  use  of  the  money  received  from 
the  association  far  more  than  the  legal  rate  of  interest. 
But  the  contract  was  in  accordance  with  the  constitution 
of  the  association,  of  which  the  defendant  was  a  member. 
The  money  was  not  advanced  by  way  of  loan,  but  in  re- 
demption of  the  defendant's  share,  a  mode  of  investment 
provided  for  by  the  constitution  of  the  association  author- 
ized by  the  act  of  incorporation.  It  is  declared  by  the 
statute  that  no  pre'mium  given  for  priority  of  loan  or 
acquisition  of  a  building,  or  discount  given  on  the  re- 
demption of  shares,  shall  be  deemed  to  be  usurious.  All 
contracts  made  under  the  authority  of  the  statute  are 
exempted  from  the  operations  of  the  statute  against  usury. 


MAY  TERM,  1861.  431 

Hoboken  Building  Association  v.  Martin. 

There  is  nothing  in  the  objection  that  the  defendant  did 
not  receive  the  entire  sum  agreed  to  be  paid  '  to  him  for  the 
redemption  of  his  share,  and  for  which  the  bond  was  given. 
The  evidence  shows  that  the  usual  deduction  of  five  dollars 
was  made  to  meet  the  expenses  of  searching  the  records  and 
preparing  the  papers.  But  if  the  fact  were  otherwise,  and 
the  money  had  been  wrongfully  withheld,  in  violation  of  the 
agreement  of  the  parties,  as  an  additional  premium  for  the 
advance  of  the  money,  it  would  not  have  tainted  the  obliga- 
tion with  usury.  It  formed  no  part  of  the  contract  upon 
which  the  money  was  advanced.  Executors  of  Howett  v. 
Auten,  1  Green's  Ch.  R.  45. 

The  last  ground  of  defence  is  that  the  affairs  of  the  asso- 
ciation are  being  wound  up  under  circumstances  which  vio- 
late the  contract  of  the  defendant  with  the  association,  and 
relieve  him  from  liabilities  upon  his  bond. 

The  association  went  into  operation  in  the  year  1852. 
By  its  constitution,  the  capital  was  derived  from  monthly 
contributions,  and  was  invested  in  the  redemption  of  the 
shares  of  members.  The  shares  were  not  to  exceed  one 
hundred  and  fifty,  and  were  to  be  extinguished  or  re- 
deemed 5u  ten  years  from  the  time  the  corporation  was 
organized.  The  shares  were  redeemed  at  auction — the 
member  accepting  the  least  sum  for  his  share  being  enti- 
tled to  have  his  share  redeemed,  and  to  receive  its  equiva- 
lent from  the  funds  of  the  association.  But  though  the 
share  of  a  member  was  redeemed,  his  membership  did  not 
thereupon  cease.  But,  by  way  of  equalizing  the  advantage 
which  he  was  supposed  to  have  obtained  by  the  redemp- 
tion of  his  share,  and  the  consequent  use  of  a  portion  of 
the  fund  to  compensate  the  members  whose  shares  were 
unredeemed,  he  was  to  pay  a  higher  rate  of  contribution 
till  all  the  shares  were  redeemed  or  satisfied  by  the  re- 
ceipt of  $800  each.  The  redeemed  shares  paid  a  monthly 
contribution  of  seven  dollars,  or  eighty-four  dollars  per 
annum.  The  unredeemed  shares  paid  a  monthly  contri- 


432  CASES  IN  CHANCERY. 

Hoboken  Building  Association  v.  Martin. 

bution  of  three  dollars,  or  thirty-six  dollars  per  annum. 
In  1855  there  were  forty-nine  redeemed  shares,  each  of 
which  was  bound  to  pay  eighty-four  dollars  per  annum. 
Their  owners  appear  to  have  discovered  that  they  were 
paying  an  extraordinary  premium,  or  rate  of  interest,  for 
their  money.  It  was  obviously  therr  interest  that  the 
arrangement  should  be  terminated,  and  as  obviously  the 
interest  of  the  owners  of  the  unredeemed  shares  that  it 
should  be  continued.  This  gave  rise  to  difficulty.  The 
owners  of  the  redeemed  shares  naturally  felt  that  the 
operation  of  the  contract  was  oppressive.  It  is  in  evidence 
that  all  or  most  of  them,  including  the  defendant,  refused 
or  neglected  to  pay  their  monthly  contributions.  The 
owners  of  many  of  the  unredeemed  shares  thereupon  re- 
fused to  pay  their  monthly  dues.  An  arrangement  was 
thereupon  entered  into,  by  which  it  was  agreed  that  the 
affairs  of  the  institution  should  be  wound  up.  The 
owners  of  the  unredeemed  shares  were  to  receive,  in 
satisfaction  of  their  claims,  the  sums  they  had  respect- 
ively advanced,  with  interest.  The  owners  of  the  re- 
deemed shares,  who  had  given  mortgages  for  the  price  of 
redemption,  were  to  be  discharged  from  their  obligations 
upon  paying  the  amount  of  their  mortgages,  with  interest, 
being  the  sum  which  they  had  actually  received  from  the 
association,  less  the  amount  of  their  monthly  contribu- 
tions. The  arrangement  was  perfectly  equitable,  and  was 
favorable  to  the  mortgagors.  The  testimony  is  conflict- 
ing, but  the  decided  weight  of  the  evidence  is  that  the 
arrangement  received  the  sanction  of  the  corporation. 
However  this  may  be,  the  proof  is  decided  that  it  was 
assented  to  and  approved  by  the  defendant.  Under  this 
arrangement,  forty-four  of  the  forty-nine  unredeemed 
shareholders  have  been  settled  with  and  discharged  from 
their  mortgages.  The  defendant  now  insists  that  he  was 
willing  to  pay  his  contributions;  that  the  winding  up  of  the 
affairs  of  the  association  was  illegal,  and  that  he  is  conse- 


MAY  TERM,  1861.  433 

Hoboken  Building  Association  v.  Martin. 

quently  released  from  the  obligation  of  his  bond  and 
mortgage. 

The  arrangement  is  either  obligatory  or  inoperative  and 
void.  If  it  is  inoperative,  the  defendant  is  left  to  the 
terms  of  his  contract.  The  illegal  conduct  of  the  officers 
of  the  corporation  will  not  relieve  him  from  his  obliga- 
tion. By  the  constitution  of  the  association  and  the 
terms  of  the  mortgage  deed  he  would  be  entitled  to  re- 
deem only  upon  payment  of  all  the  future  subscriptions 
on  his  shares  until  the  dissolution  of  the  society,  its  prob- 
able duration  to  be  ascertained  by  calculation,  and  the 
future  payments  to  be  treated  as  if  immediately  due. 
Mosley  v.  Baker,  6  Hare  87;  S.  C.,  27  Eng.  Law  and  Eq. 
512;  Fleming  v.  Telf,  Ibid.  490;  Farmer  v.  Smith,  4  Hurls. 
&  Nor.  196;  Seagrave  v.  Pope,  1  De  Gex,  McN.  &  Oor.  783; 
S.  C.,  15  Eng.  Law  &  Eq.  477. 

The  same  principle  as  applied  to  decrees  of  foreclosure 
was  adopted  by  the  master  and  sanctioned  by  the  Chan- 
cellor, in  Van  Vorst  v.  Horsley,  to  be  found  in  Book  of 
Enrolled  Decrees  E  4,  page  626.  It  was  also  recognized 
and  approved  by  the  Chancellor  in  Savings  Association  v. 
Vanderveer,  3  Stockt.  387,  although  in  that  case  the  account 
of  the  monthly  payments  due  from  the  mortgagor  was 
directed  to  be  taken  only  to  the  period  of  taking  the 
account. 

Independent  of  the  arrangement  for  winding  up  the 
affairs  of  the  association,  the  defendant  would  be  bound 
to  account  according  to  the  condition  of  his  bond  until 
the  time  fixed  for  the  dissolution  of  the  corporation.  It 
is  obvious  that  all  the  shares  could  not  have  been  re- 
deemed before  that  period.  But  the  defendant  is  equita- 
bly entitled  to  the  benefit  of  that  arrangement,  although 
he  subsequently  repudiated  and  refused  to  perform  it. 
The  complainants  cannot  object  to  a  decree  upon  this 
basis,  for  they  have  acted  upon  it,  and  are  proceeding  to 
wind  up  the  affairs  of  the  corporation  accordingly.  It  is 
in  fact  the  only  satisfactory  and  equitable  method  of  dis- 


434  CASES  IN  CHANCERY. 

Vansciver  v.  Bryan. 

posing  of  the  question.  It  is  obvious,  from  the  evidence  in 
the  cause  and  from  the  statements  of  the  defendant  himself 
upon  the  hearing,  that  the  whole  controversy  in  this  court  has 
arisen  from  a  trifling  difference  between  the  parties  as  to  the 
sum  actually  due  to  the  complainants  upon  the  basis  of  the 
settlement.  The  whole  difference  was  less  than  twenty  dol- 
lars. It  is  exceedingly  to  be  regretted  that  so  much  expense 
should  have  been  incurred  for  so  trifling  an  amount. 

The  complainants  are  entitled  to  the  sura  of  $221.78,  the 
amount  reported  by  the  cashier  to  be  due  from  the  defendant 
upon  the  basis  of  the  settlement  on  the  first  of  September, 
1856,  with  interest  from  that  date.  No  reference  to  a  master 
is  necessary.  The  amount  can  be  agreed  upon,  or  readily  ascer- 
tained by  calculation,  and  a  decree  will  be  made  accordingly. 

CITED  in  Mech.  Build,  and  Loan  Assoc.  of  New  Brunswick  v.  Oonover,  1 
MeCar.  224 ;  Clarlcsville  Building  and  Loan  Assoc.  v.  Stephens,  11  0. 
E.  Or.  355. 


VANSCIVER  vs.  BRYAN  and  others. 

1.  A  judgment  without  the  issuing  of  an  execution  operates  as  a  lien  from 
the  time  of  its  entry,  on  the  lands  of  the  defendant,  and  a  subsequent  con- 
veyance or  mortgage  executed  by  the  defendant  will  not  defeat  such  lien. 

2.  Evidence  relative  to  matters  not  stated  in  the  pleading,  nor  fairly 
within  its  general  allegations,  is  impertinent,  and  cannot  be  made  the 
foundation  of  a  decree. 


Merritt,  for  Asay,  defendant. 
Ten  Eyck,  for  Morgan,  defendant. 

THE  CHANCELLOR.  There  is  no  dispute  in  regard  to  the 
complainant's  mortgage,  which  constitutes  the  first  en- 
cumbrance on  the  mortgaged  premises.  The  whole  con- 
troversy is  a  question  of  priority  between  two  subsequent 
encumbrancers,  whose  claims  are  stated  in  the  bill.  \Vil- 


MAY  TERM,  1861.  435 

Vansciver  v.  Bryan. 

Ham  Morgan  recovered  a  judgment  against  Bryan,  the  mort- 
gagor, in  the  Burlington  Pleas,  on  the  24th  of  July,  1858, 
upon  which  judgment  execution  was  issued  on  the  21st  of 
September  following.  The  execution  was  not  levied  upon 
the  mortgaged  premises,  but  upon  other  lands  of  the  defend- 
ant in  execution.  On  the  29th  of  July,  1858,  five  days  after 
the  entry  of  the  judgment,  Bryan,  the  mortgagor,  executed 
to  Abraham  Asay  a  mortgage  upon  two  equal  undivided 
third  parts  of  the  premises  included  in  the  complainant's 
mortgage.  On  the  same  day,  Bryan  gave  to  Asay  a  deed  in 
fee  for  the  remaining  third  part  of  said  premises.  The  mort- 
gage given  to  Asay  was  not  recorded  until  the  9th  of  Octo- 
ber, 1858.  His  deed  was  not  recorded  until  the  30th  of 
April,  1859,  when  a  second  mortgage  between  the  same  par- 
ties upon  the  undivided  two-thirds  was  also  recorded. 

Morgan,  by  his  answer,  insists  that  his  judgment,  being 
prior  to  the  mortgage  and  conveyance  to  Asay,  is  entitled  to 
priority.  Asay,  by  his  answer,  admits  the  judgment  to 
Morgan,  but  insists  that  he  is  entitled  to  priority. 

1st.  Because  his  mortgage  was  executed  and  recorded  prior 
to  the  issue  of  execution  upon  Morgan's  judgment. 

2d.  Because  the  execution  was  never  levied  upon  the 
premises  included  in  the  conveyance  and  mortgage  from 
Bryan  to  him. 

The  judgment,  from  the  time  of  its  entry,  operates  as  a 
lien  upon  the  lands  of  the  defendant.  Nix.  Dig.  722,  §  2. 
The  only  exception  is  in  favor  of  subsequent  judgment  and 
execution  creditors,  who  have  a  priority  over  judgments 
upon  which  no  executions  have  been  issued.  The  reason  9c 
this  exception  is  clearly  stated  in  the  statute.  Nix.  Dig* 
724,  §  9.  The  fact  that  no  execution  was  issued,  or,  being 
issued,  that  no  levy  was  made,  does  not  affect  the  lien  of 
the  judgment  or  its  priority  over  subsequent  deeds  and 
mortgages. 

The  ground  principally  relied  upon  at  the  hearing  in 
support  of  Asay's  claim  to  priority  over  the  prior  judg- 


436  CASES  IN  CHANCERY. 

Vansciver  v.  Bryan. 

ment  of  Morgan  was,  that  the  title  to  the  one  equal 
undivided  third  part  of  the  premises  included  by  the 
complainant's  mortgage,  and  which  were  subsequently- 
conveyed  to  Asay,  were  in  fact  owned  by  him  prior  to  the 
entry  of  the  judgment.  Though  the  legal  .title  was  in 
Bryan,  it  is  alleged  that  he  paid  one  equal  third  of  the 
purchase  money,  and  that  Morgan  had  notice  of  this 
equitable  claim  prior  to  the  entry  of  his  judgment.  This 
fact,  if  properly  put  in  issue  by  the  pleadings  and  sus- 
tained by  the  evidence,  would  relieve  Asay's  share  of.  the 
land  from  the  encumbrance  of  the  judgment.  But  the 
fact  of  the  existence  of  this  equitable  title  is  not  relied  on 
or  adverted  to  in  Asay's  answer.  On  the  contrary,  he 
insists  that  he  is  entitled  to  priority  over  Morgan's  judg- 
ment because  no  execution  was  issued  and  levied  upon 
the  premises.  Evidence  relative  to  matters  not  stated  in 
the  pleading,  nor  fairly  within  its  general  allegation,  is 
impertinent,  and  cannot  be  made  the  foundation  of  a  de- 
cree. A  bill  to  annul  a  bond  for  want  of  consideration 
will  not  be  sustained  by  proof  that  the  contract  was  im- 
moral. Nor  will  a  bill  filed  to  set  aside  a  sale  on  the 
ground  of  fraud  practised  by  the  defendant  be  sustained 
by  proof  of  a  relationship  between  the  parties,  from  which 
fraud  might  be  inferred,  where  that  fact  is  not  stated  in 
the  bill.  Whaley  v.  Norton,  1  Fern.  484;  Williams  v> 
.Llewellyn,  2  Young e  &  J.  68. 

The  rule  is  well  established,  that  the  court  cannot  notice 
matter,  however  clearly  proved,  of  which  there  is  no  alle- 
gftion  in  the  pleadings.  Gresley's  Ev.  161. 

The  rule  should  be  strictly  enforced  wherever  the 
matter  offered  in  evidence  is  not  fairly  within  the  general 
allegations  of  the  bill,  and  where  its  production  will  ope- 
rate as  a  surprise  upon  the  adverse  party.  If  the  matters 
stated  by  Asay  in  his  answer  had  been  contained  in  a  bill 
of  complaint,  he  clearly  could  not  have  shown  his  equita- 
ble title  in  evidence.  Morgan  would  have  been  entitled 
to  the  benefit  of  an  answer  upon  that  part  of  the  case.  A 


MAY  TERM,  1861.  437 

Vansciver  v.  Bryan. 

defendant  who  seeks  by  his  answer  to  impeach  the  prior  right 
of  his  co-defendant,  can  stand  in  no  better  position  than  if  lie 
were  complainant,  seeking  the  same  advantage  by  his  bill.  If, 
therefore,  the  equitable  right  of  Asay  were  fully  proved,  he 
could  not  have  the  benefit  of  it  under  the  pleadings  in  the 
cause. 

But,  aside  from  this  technical  difficulty,  his  equitable  title 
is  not  satisfactorily  proved.  The  proof  depends  almost  ex- 
clusively upon  the  testimony  of  Asay  himself.  The  support 
it  derives  from  the  evidence  of  the  witness  on  the  part  of 
Morgan  is  not  sufficient  to  sustain  a  decree.  A  party  who 
comes  into  court  seeking  relief  on  equitable  ground  against 
the  legal  rights  of  another  should  establish  his  equity  by  clear 
and  irrefragable  proof.  To  permit  the  legal  priority  of  a 
judgment  or  mortgage  to  be  overcome  by  the  parol  evidence 
of  a  subsequent  encumbrancer,  unsupported  by  other  clear  tes- 
timony, would  be  destructive  of  the  security  of  all  legal  en- 
cumbrances. 

The  master,  in  taking  the  account  and  stating  the  order  of 
encumbrances,  must  give  priority  to  Morgan's  judgment  over 
the  mortgage  of  Asay.  The  judgment  is  also  a  lien  on  the 
lands  subsequently  conveyed  by  Bryan  to  Asay.  The  levy  of 
the  execution  of  Morgan's  judgment  on  the  real  estate  of  the 
defendant  in  execution  is  not  a  legal  satisfaction  of  the  judg- 
ment. Theevidenceshows  that  the  land  levied  upon  is  not  suffi- 
cient to  satisfy  the  j  udgment.  It  also  appears  that  there  is  a  sub- 
sequent encumbrance  upon  the  land  levied  on.  The  plaintiff 
ill  execution  cannot,  therefore,  be  required  to  apply  first  the 
proceeds  of  the  sale  of  the  land  levied  on  in  satisfaction  of  his 
judgment  in  aid  of  Asay's  encumbrances  upon  other  property 
subject  to  Morgan's  judgment.  Assets  are  never  marshaled 
to  the  prejudice  of  subsequent  encumbrancers.  The  premises 
must  be  sold,  and  the  proceeds  of  the  sale  applied  in  satisfac- 
tion of  the  encumbrances,  in  conformity  with  these  directions. 
The  matter  is  referred  to  a  master  to  take  an  account,  and  re- 
port accordingly. 

CITED  in  Marshman  v.  Conklin,  6  C.  E.  Or.  548 ;  Jacobut  T.  Mut.  Ben. 
Life  Ins.  Co.,  12  C.  E.  Gr.  620. 


438  CASES  IN  CHANCERY. 


Oram  v.  Dennison. 


OEAM  vs.  DENNISON. 

1.  Where  complainant's  proceedings  are  regular,  the  decree  is  opened  at 
the  instance  of  the  defendant  on  payment  of  costs. 

2.  But  where  a  sole  defendant  resides  out  of  the  state,  and  no  foreign 
publication  is  ordered  or  notice  given  to  the  defendant,  costs  on  opening 
the  decree  ordered  to  abide  the  event  of  the  suit. 


Bill  for  relief  against  a  deed  to  the  defendant,  alleged  to 
have  been  fraudulently  obtained.  Decree  pro  confesso  and 
order  for  proofs  taken  25th  March,  1861.  By  the  sheriff's 
return,  it  appears  that  the  defendant  resided  in  the  city  of 
New  York.  The  order  of  publication  was  published,  in  com- 
pliance, with  its  terms,  in  a  newspaper  published  at  Morris- 
town,  in  this  state. 

Mills,  on  behalf  of  the  defendant,  applied  to  set  aside  the 
decree  pro  confesso  without  payment  of  costs ;  that  the  de- 
fendant be  admitted  to  defend  the  suit,  and  that  he  have 
thirty  days'  time  to  answer.  In  support  of  the  motion,  he 
read  an  affidavit  of  the  defendant  (a  copy  of  which  was  served 
on  the  complainant's  solicitor,  with  notice  of  the  motion,) 
stating  that  the  defendant  resides  and  transacts  business  in 
the  city  of  New  York ;  that  no  process  of  subpoena  was  served 
upon  him  ;  that  he  never  saw  the  order  of  publication,  and 
that  he  had  no  knowledge  of  the  existence  of  the  suit  until 
the  17th  day  of  July  last,  and  first  learned  that  a  decree  had 
been  entered  against  him  on  the day  of  July 

THE  CHANCELLOR.  The  decree  must  be  set  aside,  the 
defendant  admitted  to  defend,  and  thirty  days  allowed  to 
plead,  answer  or  demur.  The  only  question  relates  to 
the  allowance  of  costs.  Where  the  complainant's  pro- 
ceedings are  strictly  regular,  the  rule  upon  opening  the 
decree  is  granted  upon  the  payment  of  costs.  The  order 


MAY  TERM,  1861.  439 

Seymour  v.  Lewis. 

of  publication  in  this  cause  is  not  in  accordance  with  the 
rule  of  practice,  as  stated  in  Wetmore  v.  Dyer,  1  Green1 8  Ch. 
R.  386,  viz.,  that  where  the  defendants  all  reside  out  of  the 
state,  foreign  publication  is  required.  The  rule  is  not  uni- 
formly enforced  in  practice,  but  is  founded  in  reason,  and,  in 
the  present  case,  there  was  a  peculiar  propriety  in  adopting 
it.  The  petitioner  is  the  sole  defendant,  resident  and  doing 
business  in  the  city  of  New  York.  Personal  service  might 
readily  have  been  effected.  A  publication  of  the  order  in 
the  city  of  New  York  would  most  probably  have  met  the 
defendant's  notice.  There  was  no  probability  that  the  pub- 
lication in  a  country  paper  which  the  defendant  did  not  take 
would  be  seen  or  heard  of  by  him.  It  is  true  the  order  of 
publication  was  signed  in  its  present  form  by  the  Chancellor. 
But  such  formal  orders,  it  is  well  known,  are  usually  signed 
as  drawn  by  the  complainant's  solicitor,  where  no  question 
is  raised  as  to  their  legality,  and  are  always  taken  at  the 
peril  of  the  complainant.  It  is  proper,  under  the  circum- 
stances, that  the  costs  of  the  decree  pro  confesso  should  abide 
the  event  of  the  suit. 

Order  accordingly. 


SEYMOUR  AND  SAGE  vs.  HENRY  M.  LEWIS  and  others. 

1.  Where  the  owner  of  a  spring  lot,  and  of  a  paper-mill  on  another 
tract,  by  an  artificial  arrangement  conveys  the  water  to  the  mill,  and  then 
Bella  the  spring  lot,  the  purchaser  takes  it  subject  to  the  burthen. 

2.  The  principle  is  that,  where  the  owner  of  two  tenements  sells  one  of 
them,  the  purchaser  takes  the  tenement,  or  portion  sold,  with  all  the  ben- 
efits and  burthens  which  appear  at  the  time  of  the  sale  to  belong  to  it,  M 
between  it  and  the  property  which  the  vendor  retains. 


Rickey  and  Beasley,  for  complainants. 

/ 
Wilson,  for  defendants. 


440  CASES  IN  CHANCERY 

Seymour  v.  Lewis. 

THE  CHANCELLOR.  In  the  year  1857,  James  Gaunt  waa 
seized  in  fee  and  possessed  of  two  lots  or  parcels  of  land 
and  real  estate  in  the  city  of  Trenton.  The  first  consisted 
of  an  extensive  and  valuable  paper-mill,  with  the  water 
privileges  and  appurtenances,  situate  on  the  raceway  of 
the  Trenton  Water  Power  Company,  and  known  as  the 
Delaware  mill.  The  second  consisted  of  a  lot  of  land  on 
the  south  side  of  Front  street,  extending  in  the  rear  to 
Washington  street,  upon  which  were  erected  two  brick 
dwellings.  Upon  the  latter  lot  there  was  a  valuable 
spring,  which  furnished  a  copious  supply  of  water.  The 
water  of  the  spring  had  been,  by  a  previous  owner  of  the 
two  lots,  as  early  as  1845,  (and  probably  as  early  as  1841,) 
diverted,  by  means  of  pipes  or  conduits,  from  its  natural 
and  accustomed  channel  over  the  land  to  the  Assanpink 
creek,  to  the  paper-mill  upon  the  other  lot  of  Gaunt,  and 
was  there  used  in  the  manufacture  of  paper.  The  water 
continued  to  be  thus  diverted  and  used  by  all  the  succes- 
sive proprietors  of  the  two  lots  down  to  the  year  1857. 
It  was  so  used  a.nd  enjoyed  by  James  Gaunt  during  his 
ownership  and  occupancy  of  the  two  lots.  During  that 
year  Gaunt  became  insolvent.  By  a  deed,  dated  on  the 
31st  of  August,  1857,  he  conveyed  the  two  houses  and  lot 
on  Front  street  to  his  father-in-law,  Griffen  Green.  On 
the  26th  of  September,  1857,  he  leased  the  paper-mill  to  the 
complainants,  Seymour  and  Sage,  for  the  term  of  two  years, 
and  on  the  28th  of  the  same  month  he  executed  to  them  a 
mortgage  upon  the  paper-mill,  to  secure  the  payment  of 
$40,000,  with  interest. 

On  the  2d  of  November,  1857,  a  writ  of  attachment 
issued  out  of  the  Supreme  Court,  at  the  suit  of  Hiram  A. 
Briggs  and  liussell  Briggs,  to  the  sheriff  of  the  county  of 
Mercer,  against  the  real  and  personal  estate  of  James 
Gaunt  and  James  T.  Derrickson,  as  non-resident  debtors, 
by  virtue  of  which  the  sheriff  attached,  inventoried,  and  ap- 
praised the  paper-mill  alone.  The  lot  on  Front  street  was 
not  included  in  the  inventory. 


MAY  TERM,  1861.  441 

Seymour  v.  Lewis. 

On  the  llth  of  November,  1857,  a  writ  of  attachment 
issued  out  of  the  Supreme  Court  to  the  sheriff  of  the  county 
of  Mercer,  at  the  suit  of  Henry  M.  Lewis,  against  the  real 
and  personal  estate  of  James  Gaunt,  as  a  non-resiflent  debtor, 
by  virtue  of  which  the  sheriff  attached,  inventoried,  and 
appraised  both  the  paper-mill  and  the  houses  and  lot  on 
Front  street.  This  latter  attachment  is  still  pending,  undis- 
posed of. 

In  the  attachment  issued  at  the  suit  of  Briggs  against 
Gaunt  and  Derrickson,  judgment  was  recovered,  upon  the 
report  of  auditors,  in  favor  of  divers  creditors,  to  an  amount 
exceeding  $85,000,  including  a  claim  of  the  complainants, 
Seymour  and  Sage,  against  Gaunt  alone,  to  the  amount  of 
$50,965.75,  and  the  auditors  were  directed  to  make  sale  of 
the  proj>erty  attached.  At  a  sale  made  by  the  auditors,  on 
the  29th  day  of  July,  1859,  Seymour,  one  of  the  complain- 
ants, for  the  benefit  of  the  firm,  became  the  purchaser  of  the 
paper-mill,  with  the  privilege  of  diverting  the  water  from 
the  spring  to  the  paper-mill,  and  also  of  the  houses  and  lot 
on  Front  street.  The  property  was  conveyed  to  him,  accord-, 
ingly,  by  d«ed  dated  on  the  9th  of  September,  1859.  The 
complainants,  by  virtue  of  their  lease  and  of  the  title  thus 
acquired  by  them,  continued  in  possession  and  enjoyment  of 
the  paper-mill  and  of  the  spring  of  water,  down  to  the  time 
of  filing  their  bill. 

Lewis  claims  title  to  the  lot  on  Front  street,  and  also  to 
the  spring  of  water,  with  the  right  of  diverting  it  from  the 
complainants'  mill,  by  virtue  of  a  deed  from  Griffen  Green, 
bearing  date  on  the  5th  of  May,  1859. 

The  bill  prays  that  the  deed  from  Gaunt  to  Griffen 
Green,  aud  from  Green  to  Lewis,  may  be  declared  to  be 
fraudulent  and  void,  or  that  they  shall  stand  as  securities 
for  the  sums  actually  advanced  to  Gaunt,  as  a  considera- 
tion for  the  conveyance;  that  Lewis  may  be  enjoined 
from  using  the  title  as  a  defence  to  an  ejectment  brought 
by  Seymour  for  the  recovery  of  the  said  lot,  and  that  he 


442  CASES  IN  CHANCERY. 

Seymour  v.  Lewis. 

may  be  also  restrained  from  diverting  or  obstructing  the  flow 
of  water  from  the  spring  to  the  complainants'  mill. 

Upon  the  facts  disclosed  by  the  pleadings,  and  established 
by  the  evidence  in  this  cause,  the  complainants  have  an 
unquestioned  title  to  the  paper-mill,  with  the  appurtenances. 
The  defendant  has  the  legal  title  to  the  lot  in  Front  street. 
Assuming  the  title  from  Gaunt  to  Griffen  Green,  under  which 
the  defendant  claims,  to  be  valid  and  operative,  the  material 
question  in  the  cause  is  whether  the  right  to  water  flowing 
from  the  spring  passed  with  the  title  of  the  lot  upon  which 
the  spring  is  situate,  or  whether  it  remained  in  the  grantor, 
as  an  appurtenance  of  the  mill.  The  water  of  the  spring 
was  diverted  from  its  natural  channel,  and  was  conveyed  to 
the  mill,  to  be  used  in  the  manufacture  of  paper  by  a  former 
proprietor  of  both  lots,  at  least  as  early  as  the  year  1845. 
The  water  was  carried  from  the  spring  to  the  mill,  a  distance 
of  eight  or  nine  hundred  feet,  by  means  of  iron  pipes  or  con- 
duits, laid  under  ground.  The  diversion  of  the  water  was 
effected  by  the  proprietor,  at  a  great  expense,  for  the  exclu- 
sive benefit  of  the  mill.  It  continued  to  be  so  used  and 
enjoyed  by  the  successive  proprietors  of  the  two  lots,  for 
several  years,  and  so  long  as  the  title  of  the  two  lots  were 
united  in  the  same  person.  It  was  so  used  and  enjoyed  by 
James  Gaunt  at  the  date  of  the  conveyance  of  the  Front 
street  lot  to  Griffen  Green,  on  the  31st  of  August,  1857. 
The  deed  is  in  the  usual  form  of  a  deed  of  bargain  and  sale, 
and  contains  no  express  reference  to  the  spring,  or  the  water 
flowing  from  it,  either  by  way  of  grant  or  reservation.  The 
complainant  insists  that  the  grantee  took  title  to  the  Front 
street  lot,  upon  which  the  spring  is  situate,  subject  to 
the  easement  of  the  flow  of  water  to  the  mill,  as  it  was 
used  and  enjoyed  by  the  owner  at  the  date  of  the  convey- 
ance. 

In  an  elementary  treatise  of  deservedly  high  reputa- 
tion, it  is  said  that  the  implication  of  the  grant  of  an  ease- 
ment  may  arise  upon  a  severance  of  an  heritage  by  its 


MAY  TERM,  1861.  443 

Seymour  v.  Lewis. 

owner  into  two  or  more  parts.  Upon  the  severance  of  an 
heritage  a  grant  will  be  implied — first,  of  all  of  those  con- 
tinuous and  apparent  easements  which  have  in  fact  been 
used  by  the  owner  during  the  unity,  though  they  have 
had  no  legal  existence  as  easements;  and  secondly,  of 
all  those  easements  without  which  the  enjoyment  of  the 
several  portions  could  not  be  fully  had.  Gale  and  Whalley 
on  Easements  49. 

The  rule  of  the  French  law  upon  this  subject,  with  the 
incidents  of  which  the  common  law  is  said  to  agree,  is 
thus  laid  down  in  the  French  civil  code.  "  If  the  pro- 
prietor of  two  estates,  between  which  there  exists  an 
apparent  sign  of  servitude,  disposes  of  one  of  these  estates 
without  inserting  in  the  contract  any  stipulation  relative  to 
the  servitude,  it  continues  to  exist  actively  or  passively  in 
favor  of  the  land  alienated  or  over  the  land  alienated."  Code 
Napoleon,  Book  2,  tit.  4,  §  694. 

Does  this  principle  prevail  at  common  law? 

In  the  very  recent  case  of  Lampman  v.  Milks,  7  Smith 
507,  Justice  Selden,  in  delivering  the  opinion  of  th« 
Court  of  Appeals  of  New  York,  said,  "The  rule  of  the 
common  law  on  this  subject  is  well  settled.  The  princi- 
ple is,  that  where  the  owner  of  two  tenements  sells  one 
of  them,  or  the  owner  of  an  entire  estate  sells  a  portion, 
the  purchaser  takes  the  tenement  or  portion  sold  with  all 
the  benefits  and  burthens  which  appear  at  the  time  of  the 
sale  to  belong  to  it,  as  between  it  and  the  property  which 
the  vendor  retains.  This  is  one  of  the  recognized  modes 
in  which  an  easement  or  servitude  is  created.  No  ease- 
ment exists  so  long  as  there  is  a  unity  of  ownership,  be- 
cause the  owner  of  the  whole  may  at  any  time  re-arrange 
the  qualities  of  the  several  parts.  But  the  moment  a 
severance  occurs  by  the  sale  of  a  part,  the  right  of  the 
owner  to  re-distribute  the  properties  of  the  respective  por- 
tions ceases,  and  easements  or  servitudes  are  created  corres- 
ponding to  the  benefits  aud  burthens  mutually  existing  at  the 
time  of  the  sale." 


444  CASES  IN  CHANCERY. 

Seymour  v.  Lewis. 

The  principle  thus  clearly  stated  is  fully  sustained  by 
the  current  of  authority,  both  ancient  and  modern.  Rob- 
bins  v.  Barnes,  Hobart  131 ;  Nicholas  v.  Chamberlain,  Cro. 
Jac.  121 ;  Cox  v.  Matthews,  1  Vent.  237 ;  Palmer  v.  Fletcher, 
1  Levinz  1 22 ;  8.  C.,  2  -Sic?.  167 ;  Sliury  v.  Piggot,  3  Buh.  339 ; 
Bralcely  v.  Sharp,  2  Stockt.  206 ;  Hazard  v.  Robinson,  3 
Mason  272 ;  United  States  v.  Appleton,  1  Sumner  492  ;  JVeM> 
Ipswich  Factory  v.  Batchelder,  3  JVew>  Hamp.  1 90 ;  Kilgour 
\.  Ashcom,  5  Harr.  &  Johns.  82. 

It  is  admitted  that  this  doctrine  applies  in  its  fullest 
extent  in  support  of  all  easements  claimed  by  the  grantee 
of  that  part  of  the  premises  first  sold  by  the  common 
owner.  Thus  it  is  said,  if  Gaunt  had  retained  the  lot 
upon  which  the  spring  is,  and  conveyed  the  mill,  the  right 
to  use  the  water  would  have  passed  by  the  conveyance  as 
appurtenant  to  the  mill ;  but  having  retained  the  mill, 
and  conveyed  the  lot  upon  which  the  spring  is,  the  spring 
passes  by  the  grant,  and  the  grantor,  or  those  claiming 
under  him,  cannot  claim  the  easement  of  having  the 
water  for  the  use  of  the  mill,  for  that  would  be  in  dero- 
gation of  the  grant.  There  is  no  doubt  that  several  of 
the  reported  cases  are  made  to  rest  upon  this  ground,  and  the 
principle  may  be  safely  invoked  against  the  grantor  in  sup- 
port of  the  broader  right  arising  from  the  actual  condition  of 
the  premises  at  the  time  of  the  severance  of  the  ownership. 
But  there  are  cases  which  do  not  rest  upon  this  principle, 
nor  can  it  be  invoked  in  their  support. 

Thus  in  regard  to  what  are  termed  easements  of  neces- 
sity, as  where  a  man  grants  land  in  the  middle  of  his 
field,  the  easement  of  a  right  of  way  across  the  grantor's 
land  is  said  to  flow  by  necessity  from  the  grant.  But  if 
the  grantor  conveys  the  surrounding  land,  reserving  to 
himself  the  centre  of  the  field,  he  has  the  easement  of  a 
right  of  way  across  the  land  of  the  grantee.  2  Bouvier'a 
Inst.  190. 

So  where  land  held  in  unity  is  partitioned,  either  by 
the  voluntary  consent  of  the  parties  or  by  judicial  pro- 


MAY  TERM,  1861,  445 

Seymour  v.  Lewis. 

ceeding,  the  owner  of  each  share  will  take  his  part  sub- 
ject to  all  the  burthens  which  were  imposed  and  all  the 
advantages  conferred  by  the  prior  owner.  In  Kilgour  v. 
Ashcom,  5  Harr.  &  Johns.  82,  the  action  was  brought  for 
overflowing  the  plaintiff's  land  by  a  mill-dam  in  the  occu- 
pancy of  the  defendant.  The  land  of  both  parties  had 
previously  belonged  to  one  John  Keech,  who  died  intes- 
tate, and  the  land  was  partitioned  by  the  authority  of  the 
Orphans'  Court  among  his  heirs.  The  parties,  plaintiff 
and  defendant,  held,  respectively,  the  shares  of  the 
children.  Upon  the  defendant's  share  was  a  mill,  the 
dam  of  which  threw  the  water  upon  the  plaintiff's  land. 
A  small  part  of  the  dam  was  also  upon  his  land.  The 
court  say  the  mill  and  the  dam  were,  at  the  time  of  bring- 
ing the  suit,  in  the  same  situation  in  which  they  had  been 
left  by  John  Keech,  and  had  been  held  by  him  in  his 
lifetime,  and  the  question  is,  whether  Samuel  Keech  and 
those  claiming  under  him  have  a  right  to  use  them  in  the 
same  way  and  to  the  same  extent,  and  it  is  clear  that  they 
have.  The  children  of  John  Keech  took  their  respective 
proportions  of  their  father's  estate  in  the  same  condition  and 
subject  to  the  same  advantages  and  disadvantages  under 
which  he  held  it. 

In  BraMy  v.  Sharp,  1  StocJct.  1,  2  Stockt.  206,  in  this 
court,  the  same  principle  was  maintained  by  the  Chan- 
cellor, after  a  very  full  discussion  and  elaborate  examina- 
tion of  the  authorities.  In  that  case  the  owner  of  a  farm, 
upon  which  there  was  a  spring  of  water,  conveyed  the 
water  from  the  spring  to  two  dwelling-houses  upon  the 
premises.  The  owner  died  intestate.  That  part  of  the 
land  upon  which  were  the  spring  and  one  of  the  dwellings 
was  assigned  by  order  of  the  Orphans'  Court  to  the 
widow  and  one  of  the  heirs.  ^The  part  of  the  farm  on 
which  the  other  dwelling  was,  was  sold  by  the  commis- 
sioners under  the  order  of  the  Orphans'  Court,  and  came, 
by  sundry  mesne  conveyances,  to  the  complainant.  The 
bill  was  filed  to  protect  him  in  the  enjoyment  of  the  water 

VOL.  ii.  2  E 


446  CASES  IN  CHANCERY. 

Seymour  v.  Lewis. 

flowing  through  the  pipe  to  his  dwelling.  It  was  held  by  the 
Chancellor  that  the  aqueduct  and  the  right  to  use  the  water, 
as  it  was  held  and  enjoyed  by  the  former  owner,  being  essen- 
tial to  the  beneficial  enjoyment  of  the  premises,  vested  in  the 
complainant,  and  a  perpetual  injunction  was  granted  to  pro- 
tect him  in  the  enjoyment. 

These  cases  show  clearly  that  au  easement  may  be 
created  by  the  disposition  made  by  the  owner  of  an  estate, 
and  that  upon  the  severance  of  title  the  owners  will  take 
their  respective  shares  as  they  existed  in  the  hands  of  the 
former  owner.  It  was  held,  however,  in  the  latter  case, 
though  the  opinion  was  not  essential  to  the  decision  of 
the  cause,  that  if  the  owner  himself  had  severed  the  unity 
of  title  he  could  not  claim  the  easement  upon  the  land  on 
the  ground  that  it  would  be  derogating  from  his  own 
grant. 

In  Nicholas  v.  Chamberlain,  Cro.  Jac.  121,  which  is  one 
of  the  earliest  cases  on  the  subject,  it  was  held  by  all  the 
court,  that  if  one  erect  a  house,  and  build  a  conduit  thereto 
in  another  part  of  his  land,  and  convey  water  by  pipes  to 
the  house,  and  afterward  sell  the  house  with  the  appurte- 
nances, excepting  the  land,  or  sell  the  land  to  another, 
reserving  to  himself  the  house,  the  conduits  and  pipes 
pass  with  the  house,  because  it  is  necesary  and  quasi  ap- 
pendant ;  and  he  shall  have  liberty  by  law  to  dig  in  the  land 
for  amending  the  pipes,  or  making  them  new,  as  the  case 
may  require. 

The  question  in  this  case  came  up  upon  demurrer,  and  it 
does  not  appear  whether  the  house  or  the  vacant  laud  had 
been  conveyed.  But  the  court  treat  that  as  a  matter  of  per- 
fect indifference.  In  either  event  the  conduit  and  pipes  go 
with  the  house.  This  case  has  never  been  overruled,  but 
has  often  been  cited  with  approbation.  Hazard  v.  Robinson, 
3  Mason  279 ;  United  States  v.  Appleton,  1  Sumner  502 ; 
Lampman  v.  Milks,  7  Smith  508 ;  New  Ipswich  Factory  v. 
Batchelder,  3  New  Hamp.  190. 

In    the    last    case,   the  Chief  Justice,   in    delivering    the 


MAY  TERM,  1861.  447 


Seymour  v.  Lewis. 


opinion  of  the  court,  after  citing  the  case  of  Nicholas  v. 
Chamberlain,  says,  "The  rule  here  laid  down  seems  to  us  to 
be  founded  in  sound  reason  and  good  sense." 

In  Palmer  v.  Fletcher,  1  Lev.  122,  the  case  was,  a  man 
erected  a  house  on  his  own  lauds,  and  afterwards  sold  the 
house  to  one,  and  the  lands  adjoining  to  another,  who 
obstructed  the  lights  of  the  house.  It  was  held  that  neither 
the  builder  nor  any  purchaser  under  him,  could  obstruct  the 
lights,  on  the  ground  that  the  grantor  could  not  derogate 
from  his  grant.  Kelynge,  J.,  said,  if  the  vacant  ground  had 
been  sold  first,  and  the  house  afterwards,  the  purchaser  of  the 
ground  might  then  have  stopped  the  lights.  Twisden,  J.,  to 
the  contrary,  said,  whether  the  land  be  sold  first  or  after- 
wards, the  vendee  of  the  land  cannot  stop  the  lights  of  the 
house  in  the  hands  of  the  vendee  or  his  assignees.  The 
rule  as  declared  by  Twisden  is  now  the  well-settled  rule  of 
the  English  law.  Riviere  v.  Sower,  1  Ryan  &  Moody  24. 

In  the  recent  case  of  Lampman  v.  Milks,  7  Smith  507, 
already  referred  to,  the  court  say,  "  This  is  not  a  rule  for  the 
benefit  of  purchasers  only,  but  is  entirely  reciprocal.  Hence 
if,  instead  of  a  benefit  conferred,  a  burthen  has  been  imposed 
upon  the  portion  sold,  the  purchaser,  provided  the  marks  of 
the  burthen  are  open  and  visible,  takes  the  property  with  the 
servitude  upon  it.  The  parties  are  presumed  to  contract  in 
reference  to  the  condition  of  the  property  at  the  time  of  the 
sale,  and  neither  has  a  right,  by  altering  arrangements  then 
openly  existing,  to  change,  materially,  the  relative  value  of 
the  existing  parts." 

The  subject  is  carefully  considered  in  the  elementary 
treatise  already  referred  to,  and  the  rule,  the  ground  upon 
which  it  rests,  and  the  limitations  to  which  it  is  subject, 
are  thus  stated :  "  To  clothe  with  right  this  permanent 
alteration  of  the  qualities  of  two  heritages,  the  consent  of 
the  owner  of  the  servient  tenement,  in  the  manner  ap- 
pointed by  law,  is  necessary;  but  where  the  laud  benefited 
and  the  land  burtheued  belong  to  the  same  owner,  he 


448  CASES  IN  CHANCERY. 

Seymour  v.  Lewis. 

may  change  the  qualities  of  its  several  parts  at  his  will,  and 
his  express  volition,  evidenced  by  his  acts,  must,  at  least,  be 
as  effectual  to  impress  a  new  quality  upon  his  inheritance,  a8 
the  implied  consent  arising  from  his  long-continued  acquies- 
cence."   "  It  is  true  that,  strictly  speaking,  a  man  cannot  sub- 
ject one  part  of  his  property  to  another,  by  an  easement,  for 
no  man  can  have  an  easement  in  his  own  property,  but  he 
obtains  the  same  object  by  another  right — the  general  right 
of  property;  but  he  has  not  the  less,  thereby,  permanently 
altered  the  quality  of  the  two  parts  of  his  heritage,  and  if, 
after  the  annexation  of  peculiar  qualities,  he  alien  one  part 
of  his  heritage,  it  seems  but  reasonable,  if  the  alterations 
thus     made     are     palpable     and    manifest,    that     a     pur- 
chaser   should     take     the     land    burthened    or    benefited, 
as     the     case      may     be,     by     the     qualities     which     the 
previous    owner    had,    undoubtedly,    the    right    to    attach 
to   it."     "The   reasoning   applies   to   those   easements  only 
which    are    attended    by   some   alteration    which    is,   in    its 
nature,    obvious  and  permanent,  or,  in  technical    language, 
to   those   easements    only    which    are    apparent    and    con- 
tinuous, understanding,  by  apparent  signs,  not  those  which 
must  necessarily   be  seen,  but  those  which   may  be  seen  or 
known,  on  a  careful  inspection,  by  a  person  ordinarily  con- 
versant with  the  subject."     Gale  and  Whatley  on  Easements 
51,  63. 

Every  grant  of  a  thing  (says  Mr.  Justice  Story)  naturally 
and  necessarily  imports  a  grant  of  it  as  it  actually  exists, 
unless  the  contrary  is  provided  for.  United  States  v.  Appleton, 
I  Sumner  502. 

At  the  time  of  the  grant  of  the  Front  street  lot  from 
Gaunt  to  Griffen  Green,  the  stream  was  diverted  from  its 
natural  course  through  the  land  granted,  by  an  artificial 
channel,  to  the  mill  of  the  grantor.  The  grantee  took  the 
land  as  it  then  stood,  with  the  water  diverted  from  it. 
Lampman  v.  Mills  is  an  express  authority  that  the  grantor 
could  not  return  the  water  to  its  natural  channel,  against 


MAY  TERM,  1861.  449 

Seymour  v.  Lewis. 

the  consent  of  the  grantee.  The  grantee  has  a  right  to 
insist  that  it  shall  be  continued  as  it  was  at  the  date  of  the 
grant,  viz.,  in  the  artificial  channel.  He  cannot  have  avright 
to  elect  in  which  channel  it  shall  go.  If  the  grantee  have 
a  right  to  insist  upon  its  being  continued  in  the  artificial 
channel,  the  grantor  must  have  an  equal  right  to  keep  it 
there. 

The  easement  in  question,  being  apparent  and  continuous 
in  its  character,  comes  within  the  operation  of  the  principle. 
The  water  flows  naturally  and  continuously  from  the  spring 
to  the  mill,  the  fall  between  the  two  points  being  about 
one  foot.  Owing  to  the  length  of  the  pipe,  and  the  conse- 
quent obstruction  to  the  flow  of  the  water,  it  was  found 
that  the  full  benefit  of  the  spring  was  not  obtained.  The 
owner,  therefore,  to  overcome  the  difficulty,  applied  the 
pump,  driven  by  machinery,  directly  to  the  pipe,  and  thus 
obtained  the  full  advantage  of  the  supply  of  water.  It  has 
thus  been  used  nearly  from  the  time  that  the  pipes  were 
first  introduced. 

Nor  is  the  right  of  the  parties  at  all  affected  by  the 
grant  of  the  right  of  diverting  the  water  made  by  Gaunt 
to  Griffeu  Green.  It  is  somewhat  difficult  to  discover  the 
purpose  of  that  conveyance.  Viewed  in  regard  to  its 
apparent  object,  it  is  manifestly  inoperative.  In  1825, 
Harding,  who  owned  the  mill  and  the  lot  on  Front  street 
upon  which  the  spring  is,  purchased  of  the  owner  of  the 
land  lying  between  the  spring  and  the  Assanpink  creek 
an  additional  lot,  lying  between  the  spring  and  Washing- 
ton street,  together  with  the  perpetual  right  of  diverting 
to  the  paper-mill  of  the  grantee,  or  elsewhere,  all  waters 
rising  or  flowing  over  or  from  the  land  granted,  so  that 
it  should  not  flow  over  the  land  of  the  grantor  in  its 
usual  and  accustomed  course  to  the  Assanpink  creek. 
Harding  acquired  thereby  the  title  to  the  land  and  the 
easement  of  diverting  the  water  from  its  usual  and  accus- 
tomed channel  across  the  land  of  the  grantor  to  the  As- 


450  CASES  IN  CHANCERY. 

Seymour  v.  Lewis. 

sanpink  creek.  Easements  are  not  rights  distinct  from 
the  title  of  the  land.  They  are  imposed  upon  corporeal 
property  for  the  benefit  of  corporeal  property.  To  con- 
stitute an  easement,  there  must  be  two  distinct  tenements, 
the  dominant,  to  which  the  right  belongs,  and  the  servient, 
upon  which  the  obligation  is  imposed.  Gale  and  Whatley 
on  Easements  5  ;  2  Bouvier's  Inst.  170. 

By  virtue  of  the  conveyance  to  Harding,  the  spring  lot 
became  the  dominant  tenement,  and  acquired  the  ease- 
ment of  diverting  the  water  from  its  accustomed  channel 
to  the  Assanpink,  over  the  land  of  the  grantor,  which  was 
subjected  to  the  charge  of  losing  the  flow  of  the  water.  It 
passed  with  the  title  of  the  land  itself.  It  could  not  exist 
separate  from  it.  It  was  not  annexed  to  the  person  of  the 
owner.  The  title  to  the  land  could  not  be  in  one  person, 
and  the  easement  or  right  of  diversion  in  another.  When, 
therefore,  the  Front  street  lot  was  granted  by  Gaunt  to 
Griffen  Green,  the  easement  or  right  to  divert  the  water 
from  its  course  over  the  adjacent  lot  to  the  Assanpink  creek, 
passed  with  it.  Now  that  is  the  easement  which  in  terms 
this  deed  professes  to  grant,  viz.,  the  right  of  diverting  the 
water  so  that  it  shall  not  flow  over  the  intervening  land  into 
the  Assanpink.  For  that  purpose,  as  has  been  said,  the 
grant  is  inoperative,  because  the  easement  had  already  passed 
by  the  grant  of  the  land. 

But  it  was  suggested,  upon  the  argument,  that  the  effect 
of  the  grant  was  to  authorize  the  diversion  of  the  water  from 
the  paper-mill.  Such,  clearly,  is  not  the  legal  effect  of  the 
instrument.  In  very  terms  it  authorizes  the  water  to  be 
diverted  to  the  paper-mill  or  elsewhere,  as  against  the  claims 
of  the  servient  tenement,  but  not  as  against  any  other  adverse 
right.  The  deed,  I  think,  never  could  have  been  construed, 
as  against  Gaunt  himself,  into  a  grant  of  a  right  appurte- 
nant to  the  paper-mill,  and  destructive  of  the  value  of  that 
property. 

But,  however  this  may  be  as  against  the  mortgagee  and 


MAY  TERM,  1861.  451 

Seymour  v.  Lewis. 

attaching  creditors  of   the  mill   property,  it  is   clearly  in- 
operative. 

The  clear  weight  of  the  evidence  is,  that  the  deed  was 
neither  executed  nor  delivered  at  the  time  it  bears  date, 
nor  until  the  23d  day  of  January,  1858,  the  day  upon 
which  it  was  acknowledged.  It  was  not  recorded  until 
the  7th  of  April,  1859.  It  could  therefore  affect  no  right 
of  the  mortgagee  or  attaching  creditor,  which  was  ac- 
quired long  before.  Viewed  as  a  grant  of  a  right  to  divert 
the  water  from  the  paper-mill  it  was  clearly  a  conveyance  of 
property,  which  must  have  been  recorded  to  give  it  priority 
over  the  rights  of  the  attaching  creditors. 

The  complainant  further  insists  that  the  deed  from  Gaunt 
to  Griffen  Green,  under  which  Lewis  claims  title,  is  fraudu- 
lent and  void  as  against  creditors,  and  that  he  has  acquired  a 
valid  title  to  the  premises  under  the  attachment  by  virtue  of 
the  auditor's  deed. 

The  writ  of  attachment  under  which  the  complainants  claim 
title  was  not  executed  upon  the  Front  street  lot.  That  lot 
was  not  specified  in  the  inventory  and  appraisement.  No 
lien  was  acquired  thereon  by  virtue  of  the  writ,  and  the  audi- 
tor's deed  was  inoperative  to  give  title. 

The  evidence  in  the  cause  tends  strongly  to  prove  that 
the  conveyance  of  the  Front  street  lot  from  Gaunt  to 
Green  was  not  a  bona  fide  sale,  but  was  either  fraudulent 
or  intended  as  a  collateral  security  for  accommodation 
paper  previously  furnished  by  the  grantee  to  the  grantor. 
The  answer  of  Lewis  states  that  the  nominal  considera- 
tion of  the  deed,  $5000,  was  paid  as  follows :  $1666  in 
cash,  and  the  balance  of  $2334  in  two  promissory  notes 
at  six  months,  one  for  $1666  and  the  other  for  $1668. 
The  whole  transaction,  upon  its  very  face,  is  in  the  high- 
est degree  unnatural  and  improbable.  The  grantor  aliens 
the  land  and  puts  the  purchaser  in  possession,  taking  in 
payment  for  two-thirds  of  the  consideration  money  the 
promissory  notes  of  the  vendee,  who  is  shown  to  be  to- 
tally irresponsible,  and  who,  in  fact,  never  advanced  one 


452  CASES  IN  CHANCERY. 

!  Seymour  v.  Lewis. 

dollar  on  account  of  them.  The  amount  of  the  notes  was 
raised  by  a  sale  of  the  lot  after  Gaunt's  death. 

One  of  the  notes  is  dated  on  the  13th  of  July,  the  other 
on  the  18th  of  August,  and  both  are  payable  six  months 
after  date.  The  deed  is  dated  and  executed  on  the  31st 
of  August.  They  wear  all  the  appearance  of  being  mere 
accommodation  paper.  Green,  the  maker,  declared  that 
they  were  so,  and  that  he  never  received  any  considera- 
tion for  them.  The  account  given  of  the  payment  of  the 
balance  of  the  purchase  money  is  far  from  being  satisfac- 
tory. It  rests  entirely  upon  the  testimony  of  Green  him- 
self, who  was  a  deeply  interested  witness,  and  is  uncor- 
roborated by  a  single  circumstance.  The  answer  of  Lewis 
upon  this  point  is  of  no  value,  for  it  is  stated  to  be,  as  it 
obviously  was,  upon  information  merely.  If  to  these  cir- 
cumstances be  added  the  alleged  grant  of  the  right  to  di- 
vert the  water  from  the  mill  and  the  lease  of  the  water  for 
two  years  from  Green  to  Gaunt,  for  the  use  of  the  mill, 
the  character  of  the  transaction  stands  out  in  strong 
colors.  The  grantor,  on  the  eve  of  insolvency,  conveyed  to 
his  father-in-law  two  houses  and  a  lot,  which  are  proved 
to  be  worth  $5000,  and  which  were  paying  an  annual  rent 
of  $300,  together  with  the  right  to  divert  from  a  large 
and  valuable  paper  mill  a  stream  of  water  which  was 
essential  to  its  successful  operation,  and  the  lowest  esti- 
mated value  of  which  to  the  mill-owner  was  $5000,  for 
the  nominal  consideration  of  $5000,  and  receives  in  re- 
turn $1666  in  cash  and  two  promissory  notes  of  the  ven- 
dee, who  was  totally  irresponsible,  for  $2334,  which  were 
never  paid  by  the  grantee.  It  is  hazarding  little  to  assert 
that  no  such  transaction  ever  was  or  could  have  been  made 
in  good  faith. 

As  between  the  creditors  of  Gaunt,  the  grantor  and 
the  grantee,  the  conveyance  must  have  been  set  aside  as 
fraudulent  or  treated  as  a  mere  security  for  the  amount 
actually  advanced  by  the  purchaser.  But  Lewis,  the  pre- 


MAY  TERM,  1861.  453 

Seymour  v.  Lewis. 

sent  defendant,  stands  upon  different  ground.  He  paid  a 
full  and  fair  consideration  for  the  premises  independent 
of  the  claim  to  the  water  right.  There  were  certainly 
circumstances  within  his  knowledge  calculated  to  put 
him  upon  inquiry  as  to  the  character  of  the  title  of  his 
grantor.  Lewis  no  doubt  at  one  time  regarded  the  deed 
to  Griffen  Green  as  fraudulent  and  acted  upon  that  belief. 
On  the  other  hand,  the  attaching  creditors  did  not  levy 
their  attachment  upon  the  property  in  question,  thereby 
treating  the  conveyance  to  Green  as  valid.  These  com- 
plainants treated  the  conveyance  as  valid.  They  sued  out 
an  attachment  against  Green,  and  caused  it  to  be  levied 
upon  the  lot  in  question,  and  were  proceeding  to  sell  it  in 
payment  of  the  notes  alleged  to  have  been  given  by  him 
as  part  of  the  purchase  money.  Under  those  circum- 
stances, the  lot  being  about  to  be  sold  under  the  attach- 
ment at  the  suit  of  these  complainants  as  the  property  of 
Green,  Lewis  purchased  for  a  fair  price,  and  paid  more 
than  two-thirds  of  the  purchase  money  to  the  complain- 
ants themselves  in  discharge  of  their  claim  against  Grif- 
fen Green.  Under  such  circumstances,  the  complainant 
do  not  stand  in  a  position  in  a  court  of  equity,  either  in 
their  own  right  as  creditors  of  Gaunt  or  under  color  of 
the  right  of  other  creditors,  to  contest  the  validity  of 
Lewis'  title. 

The  objection  to  the  bill  on  the  ground  of  multifarious- 
ness  is  not  sustained.  The  sole  design  of  the  bill  was  to 
draw  in  question  the  validity  and  effect  of  the  complain- 
ant's title  to  the  Front  street  property.  The  whole  ground 
of  controversy  is  with  one  defendant,  virtually  by  the  same 
plaintiff,  and  respecting  one  subject  matter.  The  objection 
is  not  raised  either  by  the  answer  or  by  demurrer.  There 
is  nothing  in  the  case  to  create  embarrassment  or  per- 
plexity in  settling  the  rights  of  the  parties. 

The  prayer  of  the  complainant's  bill,  so  far  as  it  seeks 
to  set  aside  the  title  of  Lewis  to  the  Front  street  lot,  must 


454  CASES  IN  CHANCERY. 

Seymour  v.  Lewis. 

be  denied.  The  injunction  restraining  him  from  offering  the 
title  in  evidence  as  a  defence  to  the  complainant's  action  at 
law  must  be  dissolved.  The  injunction  restraining  him  from 
diverting  the  water  of  the  spring  upon  said  lot  from  the  com- 
plainant's paper-mill,  and  from  interfering  with  the  flow 
thereof,  as  heretofore  used,  must  be  made  perpetual.  The 
decree  will  be  made  without  costs  against  either  party. 

CITED  in  Fetters  v.  Humphreys,  4  O.  E.  Or.  476. 


ADJUDGED    IN    THE 


COU  RT  OF  ERRORS  AND  APPEALS 


OF  THE 


STATE   OF   NEW  JEESEY, 

ON  APPEAL  FROM  THE  COURT  OF  CHANCERY, 

AT  NOVEMBER  TERM,  1860. 


Between  JOHN  BLACK  and  others,  appellants,  and  JAMES 
SHREVE  and  others,  respondents. 

1.  A  deed,  to  be  valid,  moat  go  into  the  hands  of  the  grantees  with  the 
consent  of  the  grantors. 

2.  In  the  absence  of  all  evidence  to  the  contrary,  mere  possession  by  the 
grantee  of  a  complete  instrument  is  sufficient  evidence  of  a  lawful  delivery. 

3.  Mere   tradition  of  a  sealed  instrument,  even  to  the  party  in  whose 
favor  it  is  drawn,  does  not  necessarily  in  all  cases  make  it  a  deed. 

4.  A  sealed  instrument,  intrusted  to  a  party  with  authority  to  deliver  it 
to  the  grantee  in  case  certain  conditions  are  complied  with,  will  not  be- 
come a  deed  if  delivered  without  compliance  with  such  conditions. 

5.  If  the  instrument  be  once  delivered  to  the  party  who,  on  its  face,  is 
entitled  to  it,  it  becomes  eo  inttanli  a  deed,  and  no  agreement  in  conflict 
with  its  plain  terma  will  be  permitted  to  be  proved  to  show  that  its  opera- 
tion as  a  deed  is  to  depend  on  the  performance  of  some  condition  subsequent. 

6.  Where  the  proof  is  clear  that  final  transfer  of  the  instrument  was  not 
to  be  made  unless  certain  terms  were  complied  with,  the  law  puta  the  party 
claiming  it*  benefit  to  the  proof  of  compliance. 

7.  Parol  evidence  to  defeat  an  instrument  as  a  deed  is  admissible  to  show 

455 


456       COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

that  when  the  defendants,  or  some  of  them,  signed  the  instrument,  it  was 
stated  by  them,  to  the  agent  procuring  their  signatures,  that  it  should  be 
binding  on  them  only  in  the  event  of  its  execution  by  certain  other  per- 
eons. 

8.  Neither  does  it  make  any  difference  whether  the  agent  ever  commu- 
nicated the  limitation  to  the  party  accepting  the  deed. 

9.  The  principle  is  settled,  that  one  who  claims  through  a  special  agent 
takes  the  risk  of  his  want  of  power. 

10.  The  minutes  of  a  corporation  are  not  evidence  of  an  agreement  al- 
leged to  have  been  made  by  the  stockholders  as  individuals,  and  not  in- 
tended to  bind  the  corporation. 

11.  The  object  of  an  issue  out  of  chancery  to  be  tried  by  a  jury  is  to  in- 
form the  conscience  of  the  Chancellor,  and  it  is  his  province  to  determine 
what  evidence  shall  be  read  before  the  jury. 

12.  The  action  of  the  Chancellor  on  the  verdict  is  a  matter  resting  in 
his  discretion,  and  is  not  subject  to  review  in  the  appellate  court. 

13.  Where  twenty-one  out  of  thirty-seven  stockholders  of  a  railroad  com- 
pany sign  and  deliver  a  bond  for  the  payment  of  $35,000  to  three  of  their 
own  number,  and  it  appears,  upon  the  face  of  the  instrument,  that  the  bond 
was  to  be  binding  upon  such  as  should  sign  it,  and  that  each  should  be- 
come responsible  when  and  as  he  signed  it,  parol  proof  is  not  admissible 
to  show  that  it  was  not  to  be  binding  on  any  until  all  the  stockholders  had 
eigned  it. — Per  VKEDENBURGH,  dissenting. 

14.  A  bond  in  the  following  words :  "  We,  John  Black,  Thomas  Haines, 
[&c.,  naming  nineteen  others,]  stockholders  in  the  Delaware  and  Atlantic 
Railroad,  send  greeting:    Whereas,  the  Delaware  and  Atlantic  Kailroad 
Company  borrowed  of  John  Black  and  [two  others]  $35,000 ;  and  whereas, 
•we,  whose  names  are  hereunto  subscribed  and  seals  affixed,  have  agreed 
with  the  said  Black  and  others,  that  in  case  the  corporate  property  should 
fail  to  pay  said  $35,000  and  interest,  so  that  a  loss  or  deficiency  should  hap- 
pen, that  in  that  event  each  of  us  and  each  of  them,  the  said  Black  and 
others,  shall  sustain  an  equal  portion  of  said  loss,"  expresses  upon  its  face 
that  each  should  become  responsible  when  and  as  he  signed  it,  and  excludes 
parol  proof.that  none  were  to  be  responsible  until  all  the  stockholders  of 
the  company  had  signed  it. — Per  VBEDJBNBUBOH,  dissenting. 


Browning  and  Hoisted,  for  appellants. 
Vroom  and  Attorney- General,  for  respondents. 

The  opinion  of  the  court  was  read  by  Judges  WHELPLEY 
and  OGDEN 

WHELPLEY,  J.     The  amount  of  money,  rather  than  the 
difficulty  of  the  questions  involved  in  this  cause,  invests  it 


NOVEMBER  TERM,  1860.  457 


Black  v,  Shreve. 


with  more  than  ordinary  interest.  Were  it  otherwise,  I  should 
he  content  to  cast  my  vote  without  attempting  to  assign  rea- 
sons for  it. 

Without  designing  an  elaborate  examination  of  the  law  or 
evidence,  I  will  proceed  briefly  to  mention  some  of  the  many 
reasons  which  have  determined  me  to  cast  my  vote  for  the 
affirmance  of  this  decree. 

The  respondents  rest  their  case  upon  a  single  point — that 
the  covenant  of  the  defendants,  upon  which  their  liability 
depends,  was  never,  in  the  legal  sense  of  the  word,  delivered 
to  the  complainants,  and  that,  for  that  reason,  it  never  had 
any  legal  vitality,  though  signed  by  them. 

Until  an  instrument  under  seal  is  delivered  by  those  who 
sealed  it,  or  with  their  consent,  it  has  no  legal  operation  as  a 
deed;  delivery  is  essential  for  that  purpose.  It  must  go  into 
the  hands  of  the  grantees  or  covenantees,  by  the  consent  of 
the  grantors  or  covenantors;  possession  acquired  by  force  or 
finding,  or  in  any  other  mode  than  by  the  full  consent  of  the 
party  to  be  bound,  is  ineffectual. 

In  the  absence  of  all  evidence  to  the  contrary,  mere  posses- 
sion of  a  complete  instrument,  by  the  grantee,  is  sufficient 
evidence  of  a  lawful  delivery. 

Mere  tradition  of  a  sealed  instrument,  even  to  the  party 
in  whose  favor  it  is  drawn,  does  not,  necessarily,  in  all 
casts,  make  it  a  deed.  A  deed  complete  in  form,  signed 
and  sealed,  may  be  handed  to  the  party  for  inspection. 
If  he  should  refuse  to  return  it,  and  claim  that  the  mere 
tradition  of  the  paper  so  executed  was  a  legal  delivery,  he 
could  not  hold  it.  The  answer  would  be  that  the  tradi- 
tion, although  to  the  party,  was  not  a  delivery  of  the 
paper  as  a  deed.  It  was  not  a  final  parting  with  the 
custody  of  the  paper.  A  taking,  under  such  circumstances, 
would  be  a  tortious  taking.  Trover  would  lie  for  the 
paper.  It  would  be  a  mere  lending  of  the  paper,  not  a 
delivery.  So,  if  the  party  to  be  bound  suffer  the  paper  to 
go  into  the  hands  of  a  third  person,  with  authority  to  de- 


458       COURT  OF  ERRORS  AND  APPEALS. 

Black  T.  Shreve. 

liver  it  in  case  certain  conditions  are  complied  with,  a  trans- 
fer of  the  paper  without  compliance  with  the  conditions,  is 
no  delivery  for  want  of  authority  in  the  agent  to  do  the  act. 
It  is  the  duty  of  the  party  thus  accepting  a  tradition  of  the 
instrument,  to  see  to  it  that  the  agent,  in  the  act  of  transfer, 
is  authorized  to  do  it,  unless  he  be  the  party's  general  agent. 
If  the  instrument  be  once  delivered  to  the  party  who,  on  its 
face,  is  entitled  to  it,  it  becomes  eo  inslanti  a  deed.  No  agree- 
ment, in  conflict  with  the  plain  tenor  of  the  deed,  is  per- 
mitted to  be  proved — to  show  that  its  operation,  as  a  deed, 
is  to  depend  upon  the  performance  of  some  condition  subse- 
quent. 

I  fully  concur  in  the  clear  and  learned  opinion  of  Horn- 
blower,  C.  J.,  in  The  State  Bank  v.  Evans,  and  that  of  Chan- 
cellor Kent,  in  his  Commentaries,  (4  Kent  454,)  that  the  dis- 
tinction between  a  delivery  of  the  instrument,  as  the  deed  of 
the  party  to  a  third  person,  as  agent,  to  be  delivered  to  the 
grantee  upon  the  happening  of  some  contingency,  or  the 
performance  of  a  condition,  and  a  delivery  of  the  instrument 
as  an  escrow,  to  take  effect  as  a  deed,  upon  such  contingency 
happening  or  condition  performed,  is  too  subtile  an  devanes- 
cent  to  control  so  common  a  transaction. 

In  the  one  ease,  the  sealed  instrument  is  handed  to  the 
agent  complete,  so  far  as  execution  is  concerned,  that  is, 
signing  and  sealing,  and  so  it  is  in  the  other.  In  neither 
case  is  the  party  bound  by  it  until  the  contingency  hap- 
pens or  condition  performed.  In  neither  case  is  it,  in- 
die full  legal  sense  of  the  term,  the  deed  of  the  party.  In 
both  cases,  it  is  not  the  deed  of  the  party,  because  it  has 
not  come  into  the  possession  of  the  grantee,  or  if  it  haa, 
without  the  consent  of  the  grantor.  In  both  cases,  the 
grantor  has  done  nothing  more  than  consent  that  it  may 
go  into  the  final  possession  of  the  grantee,  upon  terms 
complied  with.  It  seems  to  make  no  difference  in  what 
form  of  words  the  depositary  is  authorized,  irrevocably,  to 
transfer  the  possession  of  the  instrument  to  the  grantee. 


NOVEMBER  TERM,  1860.  459 


Black  v.  Shreve. 


What  different  legal  consequences  flow  from  the  words,  I 
deliver  it  as  ray  deed,  to  be  handed  by  you  to  the  grantee 
upon  compliance  with  the  conditions,  or  the  words,  I 
hand  it  to  you,  and  authorize  you  to  utter  the  words  or 
to  do  the  act,  from  which,  the  law  conclusively  infers  the 
utterance  of  the  words,  qui  facit  per  aliurn,  facit  per  se. 
The  conclusive  act  is  the  authorized  traditions  of  a  complete 
instrument;  that  constitutes  a  delivery — nothing  else  does. 
The  case  of  Evans  v.  The  State  Bank  has  stood  for  twenty- 
five  years  as  the  settled  law  of  this  state.  It  accords  with 
principle  and  the  weight  of  authority,  and  furnishes  a  plain, 
practical  rule  of  practice. 

I  do  not  perceive  that  any  practical  inconvenience  can 
result  from  this  doctrince.  The  power  to  transfer  the  cus- 
tody of  the  paper  seems  just  as  irrevocable,  if  made  so  by 
the  grantor,  in  the  one  case  as  the  other.  If  it  be  a  convey- 
ance of  lands,  no  title  will  pass  until  the  contingency  happens 
or  the  condition  is  performed.  I  do  not  think  it  necessary 
to  review  the  cases  cited  in  the  opinion  of  the  Chancellor  or 
on  the  argument. 

Although  the  custody  and  possession  of  a  complete  instru- 
ment under  seal  by  the  grantee,  covenantee,  or  obligee  is 
sufficient  evidence  of  delivery,  if  not  overcome  by  proof  that 
the  grantee  came  improperly  into  possession  of  it  iu  ordi- 
nary cases,  yet  where  the  proof  is  clear  that  the  final  transfer 
to  the  party  was  not  to  be  made  unless  certain  terms  or  con- 
ditions were  complied  with,  the  law  puts  the  party  claiming 
its  benefit  to  the  proof  of  compliance.  The  power  to  transfer 
is  subject  to  the  performance  of  a  condition  precedent,  which 
must  be  proved,  and  is  not  to  be  inferred  from  the  unex- 
plained possession. 

It  is  a  question  of  agency,  and  the  power  of  the  special 
agent  to  do  the  act  must  be  shown.  Story  on  Agency  126  ; 
Paley  on  Agency  194;  3  Kent's  Com.  620,  4th  ed. 

The  power  of  an  agent  to  do  an  act  is  not  to  be  inferred 
from  the  act  alone  by  him  as  such ;  the  power  and  its 


460       COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

extent  must  be  shown  either  by  direct  or  circumstantial 
evidence. 

The  question  of  fact  to  be  decided  by  this  court  upon 
the  evidence,  attaching  such  weight  to  the  'finding  of  the 
jury  upon  the  issue  ordered  by  the  Chancellor  to  inform 
his  conscience  as  upon  the  evidence  before  them  it  may 
seem  to  merit,  is,  did  the  covenant,  signed  and  sealed  by  the 
persons  whose  names  appear  upon  it,  ever  pass  into  the  pos- 
session of  the  complainants  finally  and  absolutely  by  their 
authority.  If  the  complainants  have  established  this  fact 
they  are  entitled  to  a  decree  for  the  performance  of  it;  if 
not,  the  bill  must  be  dismissed. 

As  the  covenant  is  perfect  on  its  face,  and  is  in  the  actual 
possession  of  the  complainants,  the  only  question  seems  to  be, 
did  it  come  to  their  possession,  there  to  remain  by  the  consent 
of  the  covenantors  ? 

Upon  the  principles  stated,  this  depends  upon  the 
single  question,  was  its  delivery  to  the  complainants — I  use 
the  terra  in  its  full  technical  sense — forbidden  unless  all  the 
stockholders  of  the  Delaware  and  Atlantic  Rail  road  Company 
executed  it? 

It  is  obvious  that,  as  all  the  stockholders  did  not  sign 
and  seal  it  at  the  same  time,  and  as  it  was  carried  about 
by  different  persons  to  obtain  signatures,  that  the  liability 
of  those  who  did  sign  and  seal  it  could  be  prevented  from 
attaching  at  the  moment  of  execution  only  by  a  declara- 
tion by  those,  or  some  of  those  who  signed,  that  it  should 
not  bind  them  unless  all  signed  and  sealed  it;  that  was  a 
declaration  that,  as  to  them,  the  instrument  was  incom- 
plete, unexecuted,  until  all  signed  and  sealed  it.  If  it 
was  so  to  be  considered,  such  a  declaration  could  not 
have  been  intended  to  limit  their  liability  upon  a  com- 
pletely executed  and  delivered  instrument,  but  as  a  decla- 
ration that  until  that  was  done  the  covenant  was  not 
executed,  and  was  therefore  unsusceptible  of  delivery,  and 
not  to  be  delivered. 

This  is  the  precise   issue  made   by  the  bill  and  answer 


NOVEMBER  TERM,  1860.  461 


Black  v.  Shreve. 


stripped  of  the  verbiage  rendered  necessary  by  the  double 
meaning  of  the  terra  delivery,  signifying,  as  a  popular 
word,  mere  tradition,  and  in  legal '  phraseology  meaning 
the  final  absolute  transfer  to  the  grantee  of  a  complete  legal 
instrument  sealed  by  the  grantor,  covenantor  or  obligor. 

This  is  what  the  complainants'  bill  means  when  it  states 
that  the  defendants  did  make,  execute,  enter  into  and 
"deliver"  the  covenant.  So,  also,  the  defendants'  answer 
means  the  same  thing  when,  instead  of  denying  in  strict 
legal  terms  the  delivery  of  the  instrument,  it  states  the 
acts  antecedent  to  and  attending  the  transfer,  avoiding 
the  denial  of  a  legal  proposition  composed  of  blended 
facts  and  law  for  the  purpose,  proper  in  itself,  of  refrain- 
ing from  swearing  to  a  conclusion  of  law,  and  therefore 
using  the  term  deliver  in  its  popular  sense,  as  signifying 
transfer  of  possession.  It  states  that  the  agreement,  when 
executed  by  those  who  did  so,  was  executed — that  is,  signed 
and  sealed — subject  to  an  express  understanding  that  it 
was  to  be  executed  by  all  the  stockholders  of  the  com- 
pany, and  that  the  same  was  not  to  be  obligatory  and 
binding  on  such  as  did  execute,  until  it  was  so  executed 
by  the  other  stockholders,  and  denies  that  the-  covenant 
ever  was  or  could  have  been  delivered  as  a  binding  instru- 
ment, until  the  other  stockholders  executed  the  same. 

Laying  aside  all  mere  logomachy,  this  is  a  clear  and  full 
denial  of  two  things: 

1.  That    the   instrument   ever   was   completely   executed 
as  intended  by  the  parties. 

2.  That,  as  a  consequence,  there  was   no   legal   delivery 
— a   denial    of  legal    delivery.     That   all  were    to  execute, 
and  did   not  so  do,  are   stated    as  showing    that   there  was 
uo  legal  delivery. 

The    facts    are    stated,    leaving    the    court    to    determine 

*  O 

upon    them    the   question    of   legal    delivery.     The   answer 
further  states  that  many  of  those  who  did   sign,  as  well  as 
those  who  refused,  were   urged    to   execute   on    the  special 
VOL.  ii.  2  F 


462   COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

ground  that  the  same  was  to  be  binding  on  those  who  did 
execute  only  in  the  event  of  its  execution  by  all. 

For  such  a  purpose  it  is  clear  that  such  evidence  is 
admissible.  Its  object  and  design,  as  well  as  effect,  do 
not  contravene  the  rule  excluding  parol  evidence  from 
varying  the  terms  of  a  written  contract.  It  was  to  show 
that  the  instrument  was  incompletely  executed  ;  never  had 
any  existence  as  a  deed,  not  to  alter  the  meaning  of  a  single 
sentence,  or  add  or  take  away  a  single  provision. 

Who  were  to  sign  it  did  not  appear,  except  by  those  who 
did.  On  its  face,  it  does  not  declare  who  were  to  sign  it. 
That  may  be  proved  by  parol. 

Nor  is  it  necessary,  to  support  this  defence,  to  show 
that  the  complainants  were  parties  consenting  to  such  an 
agreement.  If  those  who  signed  it  limited  the  power  of 
the  agent  who  procured  the  signatures  to  deliver  it,  by 
declaring  that  they  would  not  be  bound  unless  all  signed, 
it  makes  no  difference  whether  the  agent  ever  communi- 
cated that  limitation  to  the  complainants  or  not.  No  prin- 
ciple of  law  is  better  settled  than  that  one  who  claims 
through  a  special  agent  takes  the  risk  of  his  want  of 
power.  It  does  not  appear,  by  the  evidence,  who  handed 
the  instrument  to  the  complainants,  nor  how  they  came 
into  possession  of  it. 

It  would  seem,  by  the  minutes  of  the  company,  to  have 
been  in  some  way  considered  as  in  custody,  of  the  com- 
pany. The  minutes  of  February  23d,  1835,  say  that  a 
new  bond  was  presented  by  the  secretary,  for  the  purpose 
of  effecting  the  aforesaid  loan,  signed  by  a  number  of  the 
stockholders.  John  Black  and  Benjamin  Jones  under- 
took to  effect  the  said  loan  in  conjunction  with  Joseph 
Smith,  and  to  report  at  next  meeting.  At  the  next  meet- 
ing, John  Black  reported  the  loan  in  Philadelphia  had 
been  made,  and  the  money  ready.  Neither  of  these 
minutes  speak  of  the  transfer  of  the  covenant  or  bond 
and  mortgage  to  Black,  Smith  and  Jones.  This  fact 
renders  it  unnecessary  to  decide  whether,  if  an  agent  of 


KOVEMBER  TERM,  1860.  463 

Black  v.  Shreve. 

the  defendants,  with  instructions  not  to  deliver,  unless  the 
signatures  were  all  obtained,  had  delivered  it  without 
making  the  limited  character  of  his  power  known  to  the 
complainants,  and  they  had  taken  it  in  good  faith,  without 
notice,  the  defendants  would  have  been  held.  No  such  de- 
livery is  shown,  and,  in  consequence,  the  complainants  cannot 
claim  the  protection  of  bona  fide  holders  of  such  an  instru- 
ment. All  this  assumes  the  execution  upon  condition  by  all 
who  did  execute;  for  that  essentially  alters  the  position  of 
the  case  upon  the  point,  who  is  to  take  the  burthen  of  proof, 
the  plaintiffs  of  actual  transfer,  as  a  complete  instrument,  or 
the  defendants,  of  the  negative? 

In  considering  the  last  question,  upon  which  the  de- 
cision of  this  case  turns,  whether  the  instrument  was  ever 
executed  by  all  those  who  were  to  execute  it,  and  there- 
fore capable  of  delivery,  it  is  not  my  object  to  attempt 
to  exhaust  the  evidence  in  framing  an  argument  to  show 
that  it  never  was  so  executed,  and  to  answer  the  able  and 
ingenious  arguments  of  the  appellants'  counsel.  In  attempt- 
ing so  to  do,  perhaps  I  should  satisfy  neither  them  or  myself. 
I  wish  to  give  some  of  the  reasons  in  the  general,  rather 
than  in  detail,  for  the  vote  which  I  shall  give  for  affirming 
the  decree. 

Waiving,  for  the  present  at  least,  the  effect  of  the  verdict 
of  the  jury,  I  have  come  to  the  conclusion  that  the  instru- 
ment was  never  executed  by  all  who  were  to  execute  it;  that 
some,  at  least,  executed  under  the  express  condition  that  all 
the  stockholders  were  to  do  so;  that  the  covenant  is  joint 
and  entire,  and  if  the  instrument  is  null  as  to  some,  it  is  so 
as  to  all. 

1.  The  allegation  of  defendants'  answer,  that,  before  the 
covenant  was  executed  by  any,  there  was  an  agreement  as  to 
who  should  execute  it,  and  that  it  was  to  be  by  all,  is  in  the 
highest  degree  probable. 

I  cannot  believe  that  those  who  had  an  inconsiderable 
interest  in  the  stock  of  the  company  would  ever  agree  to 
guarantee  the  payment  of  so  large  a  sum  as  $35,000,  to  be 


464      COURT  OF  ERRORS  AND  APPEALS. 

Elack  T.  Shreve. 

paid  by  them  equally,  unless  they  knew  who  were  to  be 
jointly  bound  with  them  ;  and  if  some  were  willing. to  do 
so,  that  all  those  who  signed  were  willing.  I  have  equal 
difficulty  iu  believing  that  the  complainants  would  be 
willing  to  take  the  guaranty  of  any  number,  no  matter 
how  small.  There  must  have  been,  from  the  very  nature  of 
the  case,  a  preliminary  agreement  fixing  who  should  sign 
and  be  bound. 

The  complainants  have  no  answer  to  make  to  the  ques- 
tion who  made  the  agreement  to  be  bound  by  signing 
such  a  covenant?  Their  bill  sets  forth  no  preliminary 
agreement  to  the  act  of  execution ;  they  say  the  persons 
who  signed,  naming  them,  made,  executed,  and  delivered 
the  agreement.  The  allegation  of  their  counsel  and  the 
evidence  discloses  no  meeting  at  which  the  parties  who 
did  execute  decided  to  sign  it  separate  from  the  others, 
or  any  meeting  of  the  subscribers  at  which  those  who 
signed  consented  that  application  for  signatures  might  be 
suspended,  and  that  they  who  had  signed  would  undertake 
the  whole  burthen. 

Their  case  must  rest  upon  the  simple  allegation  that  those 
who  did  sign,  by  that  act,  each  for  himself,  at  the  time  of 
signing,  agreed  alone  to  bear  the  burthen,  so  far  as  he  was 
concerned,  no  matter  who  might  refuse  to  share  it  with  him. 
If  there  was  no  preliminary  or  subsequent  agreement,  I  see 
no  escape  from  this  predicament. 

The  mode  in  which  it  was  signed  makes  this  manifest. 
When  presented  by  the  secretary  at  the  meeting  of  the 
25th  of  February,  1835,  the  minutes  and  the  evidence 
both  say  it  was  signed  by  a  number  of  fhe  stockholders. 
It  was  not  complete,  then ;  no  one  was  bound,  unless  the 
act  of  signing  bound  him  absolutely.  A  committee  was  ap- 
pointed to  carry  it  round,  consisting  of  Chalkley  Atkinson 
and  Dr.  Dakin,  to  get  their  signatures.  Did  any  one,  except 
the  last  one — and  did  he,  even — know  when  it  was  com- 
pletely executed  ? 

The   history   of  the  execution   of  such   a   paper  shows 


NOVEMBER  TERM,  1860.  465 


Black  v.  Shreve. 


that  the  very  mode  in  which  the  signatures  were  obtained 
contemplated  either  a  previous  action  or  subsequent  assent 
of  the  signers,  defining  the  extent  of  their  liability,  so  far  as 
it  depends  on  the  number  of  signers. 

The  theory  of  the  defendant  is,  to  my  mind,  utterly 
incredible;  business  of  that  magnitude  and  importance  never 
could  have  been  so  transacted. 

2.  The  answer  of  the  defendants,  setting  up  the  agree- 
ment  as   to    parties   who   were    to   execute,    is  strictly  re- 
sponsive to  the  bill  and   evidence  for  them.     A  moment's 
consideration   of  the   case   will    make   this  apparent.      The 
bill  charges    that    the   agreement  was  delivered  as  well  as 
executed.      We   have    already    seen     that    delivery    means 
something    more    than    mere  tradition   of    the    paper;    the 
statement  is  of  a  full  technical  delivery  of  the  instrument 
in  a  complete   state,  final    and  conclusive.     If  the  answer 
admitted  that,  and  set  up  matter  to  avoid  it,  such  matter 
would  be  irresponsive.      It   does  not  admit  any  legal   de- 
livery, on   the   contrary  denies  it,  without  even  admitting 
that  the  complainants,  by  any  transfer,  acquired  the   legal 
possession  of  the  instrument.     The   facts   stated   show,   if 
true,  conclusively  that  there  was  no  delivery,  even  if  there 
was  an   unauthorized   tradition  of  the  paper  to   the  com- 
plainants. 

The  answer  does  not  attempt  to  avoid  a  full  delivery  by 
matter  admitting  it  to  have  taken  place,  but  by  matter 
utterly  inconsistent  with  any  delivery.  The  answer  is 
entitled  to  all  the  weight  to  which  any  answer  can  be 
entitled. 

3.  The  evidence  of  Chalkley  Atkinson,  John  Gibbs  and 
Thomas  Haines. 

Atkinson,  in  particular,  swears,  most  unqualifiedly, 
that  the  agreement  was  to  be  signed  by  all  the  stock- 
holders. He  says  he  took  the  paper  round,  and  that  all 
to  whom  he  applied  were  informed  that  it  was  to  be 
signed  by  all  the  stockholders ;  that  he  got  several  to 
sign  it.  Upon  this  point  he  was  not  cross-examined;  he 


466      COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

says  it  was  the  present  covenant,  not  the  one  first  pre- 
pared. I  can  see  no  good  reason  for  supposing  that  he 
has  confounded  one  paper  with  another,  for  he  has  signed 
it  himself.  I  do  not  rely  upon  the  evidence  of  John 
Gibbs  ;  there  is  enough  without  it  to  satisfy  my  mind.  The 
testimony  of  William  Irick  is  entitled  to  much  weight;  he 
says  that  Joseph  Smith  told  him  on  one  or  two  occasions, 
that  John  Black  had  deceived  him  by  signing  a  bond,  by 
stating  that  all  the  stockholders  were  to  sign  it.  This  was 
about  the  time  the  loan  was  made.  The  evidence  of  Mr. 
Emley,  that  Joseph  Smith  complained  to  him  of  John  Black; 
that  he  came  to  him  with  the  bond,  stating  that  the  rest  were 
to  sign  it  also,  and  that  he  signed  it;  also  he  complained  that 
the  rest  had  not  signed. 

This  shows  not  only  the  agreement,  but  that  one  of  the 
complainants  knew  it  at'  the  time,  and  that  he  and  Black 
were  parties  to  it. 

The  signing  of  the  paper  was  not  a  corporate  act ;  it  could 
not,  nor  was  intended  to  bind  the  corporators  as  such.  For 
this  reason,  I  think  the  minutes  of  the  company  are  not  com- 
petent evidence  of  any  agreement  made  by  the  stockholders 
as  individuals,  and  not  intended  to  bind  the  corporation. 
They  could  not  bind  all  to  sign  by  any  resolution,  nor 
exempt  any  by  the  same  mode.  What  took  place  at  these 
meetings  must  be  proved  orally,  and  then  can  affect  only 
those  present  and  consenting. 

The  evidence,  or  the  outlines  of  it,  as  given  in  the  report 
of  Justice  Potts,  is  not  before  us,  except  collaterally,  to  be 
used  in  determining  what  weight  is  to  be  given  to  the  ver- 
dict. It  was  not  before  the  Chancellor  as  evidence  in  the 
cause  upon  the  final  hearing. 

Among  the  many  arguments  pressed  with  great  power 
by  the  counsel  of  the  appellants,  I  was  at  first  inclined  to 
attach  much  importance  to  the  fact  that  the  complainants 
had  advanced  the  money,  and  must  have  done  so  on  the 
faith  of  the  covenant,  and  that  this  was  persuasive  evi- 


NOVEMBER  TERM,  1860.  467 


Black  v.  Shreve. 


deuce  that  it  had  been  duly  executed  and  delivered.  I  ana 
now  satisfied  that  it  is  not  of  much  probative  force. 

The  complainants  may  have  supposed  that  a  covenant, 
executed  under  the  circumstances  disclosed  by  the  evidence, 
bound  the  parties  acting  upon  the  legal  principles  asserted  by 
their  counsel,  upon  the  argument,  or  they  may  have  believed, 
what  the  evidence  shows  they  stated  to  some  of  the  stock- 
holders to  induce  them  to  sign  it,  that  the  property  and 
resources  of  the  company  were  sufficient  to  indemnify  them 
for  the  advance.  It  is  charity  to  suppose  they  believed  what 
they  stated  to  some  of  the  minor  stockholders.  Nor  do  I 
attach  much  importance  to  the  phraseology  of  the  covenant, 
at  its  commencement,  when  defining  the  parties,  nor  to  the 
difference  between  the  old  and  new  agreement,  in  verbiage 
and  provisions.  I  mention  these  merely  to  show  that  I  have 
not  failed  to  consider  them. 

As  I  have  come  to  my  conclusion  in  this  case  without 
relying  upon  the  verdict  of  the  jury,  it  is  not  necessary 
that  I  should  express  any  opinion  upon  the  questions  per- 
taining to  that  issue  discussed  so  earnestly  by  counsel.  I 
entirely  concur  in  the  view  expressed  by  the  Chancellor, 
as  to  the  power  of  the  court  to  award  such  an  issue  as  to 
its  control  over  the  framing  of  it,  as  to  the  admission  of 
evidence  upon  the  trial.  It  is  the  exclusive  province  of 
the  Chancellor  to  determine  what  evidence  shall  be  read, 
and  what  not.  It  is  the  law  of  the  court,  on  an  applica- 
tion for  a  new  trial,  and  the  effect  of  the  verdict  when 
rendered,  that  he  may  decide  in  accordance  with  it  or 
against  the  finding.  The  whole  object  of  such  an  issue  is 
to  inform  the  conscience  of  the  court.  His  action  on  that 
issue,  and  the  finding,  was  a  matter  resting  entirely  in  dis- 
cretion, and  not  subject  to  review  in  the  appellate  court. 
This  court  possesses  no  power  to  award  such  an  issue,  or 
to  reverse  the  proceedings  and  remand  the  cause,  with  any 
such  directions;  our  duty  is  to  re-hear  the  case  upon  the 
evidence  and  proceedings,  as  they  stood  before  hearing, 


408       COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

unless  he  refused  to  admit  legal  evidence  to  be  taken.  If 
illegal  evidence  was  heard  by  him,  he  must  overrule  it 
here;  if  legal  evidence  was  overruled,  we  must  hear  it, 
if  the  witness  has  been  examined  and  the  depositions  are 
here. 

But  if  we  had  the  power  to  review  the  exercise  of  his 
discretion  in  refusing  a  new  trial,  it  was  exercised  rightly  by 
him.  The  main  reason  assigned  for  a  new  trial  was,  that  the 
issues  were  not  properly  made  up.  I  think  they  were,  for 
the  reasons  assigned  by  him. 

And  that  the  evidence  of  John  Black  was  not  received. 
As  the  issue  was  made  up  to  get  the  opinion  of  a  jury  upon 
the  case  as  it  stood  before  him,  he  could  have  directed  that  it 
should  be  heard  upon  the  evidence  as  it  appeared  in  the 
depositions,  and  have  prohibited  the  introduction  of  other 
testimony.  Black  had  not  been  offered  as  a  witness  before 
him,  or  examined  when  he  heard  the  cause.  It  was  discre- 
tionary with  him  to  permit  him  to  be  examined  or  not,  when 
offered,  after  he  had  himself  rested  his  cause  in  chancery, 
and  asked  the  opinion  of  the  court  upon  the  evidence  as  it 
stood.  He  was  a  competent  witness  in  the  Court  of  Chan- 
cery, under  the  act  of  1855.  Nix.  Dig.  887.  I  have  shown 
that  the  answer  was  responsive  to  the  bill. 

The  proceeding  before  Justice  Potts,  at  the  Burlington 
Circuit,  as  appeared  by  the  record,  was  strictly  legal  in 
form  ;  it  was  a  common  law  issue,  to  be  tried  according 
to  the  rules  of  law,  except  where  otherwise  ordered  by  the 
Chancellor.  Nor  was  it  of  an  equitable  character  in  sub- 
stance. No  equitable  relief  was  sought  by  it.  It  was  not 
so,  either  in  form  or  substance.  It  is  a  complete  confu- 
sion of  terms,  to  call  it  a  proceeding  of  an  equitable  nature. 
How  can  a  suit  be  of  an  equitable  nature,  which  is  so 
neither  in  form  or  substance?  It  was  ordered  by  a  court 
of  equity,  but,  nevertheless,  it  was  a  trial  at  law.  The 
statute  was  passed  to  permit  a  complainant  or  petitioner, 
when  suing  as  such,  in  the  suit  or  proceeding  in  which  he 


NOVEMBER  TERM,  1860.  469 

Black  v.  Shreve. 

appeared  as  such,  to  be  sworn  as  a  witness  in  a  certain 
case.  It  was  not  designed  to  control  the  trial  of  a  feigned 
issue — that  is  a  proceeding  which  the  legislature  have  not 
regulated  ;  it  is  the  creation  of  a  court  of  equity.  No  stat- 
ute should  be  held  to  apply  to  it,  unless  it  does  so  in  express 
terms. 

It  is  of  great  importance  to  preserve  the  power  of  the 
court  over  such  an  issue  untrameled.  The  suit  was 
neither  equitable  in  form,  in  substance,  or  effect.  It  was 
not  by  bill  or  petition.  It  was,  in  form,  an  action  for  a 
wager ;  no  equitable  relief  was  asked  by  it ;  the  verdict, 
when  rendered,  was  nothing  but  a  finding  that  the  plaintiff 
had  not  made  out  his  assertions,  and  had  lost  the  money 
wagered — was  not  entitled  to  the  $200.  The  effect  of  it  was 
not  to  grant  any  equitable  relief — It  was  mere  evidence  on 
the  final  hearing. 

I  am  fortified  in  my  conclusion  in  this  case  by  the  find- 
ing of  the  jury.  They  had  before  them  more  evidence 
favorable  to  the  complainants  than  the  Chancellor  had  on 
the  final  hearing.  No  corruption  or  partiality  was  charged 
against  them.  It  is  the  opinion  of  twelve  unbiased  men, 
omni  exceptione  majores,  upon  the  very  question  presented 
for  decision.  It  is  entitled  to  consideration,  and  in  a  case 
of  doubt  ought  to  turn  the  scale  already  inclined  against 
the  complainants,  though  the  evidence  should  not  thoroughly 
satisfy  our  minds.  The  more  I  see  of  juries  and  their  ver- 
dicts, the  more  I  am  satisfied  that  it  is  the  best  mode  of  de- 
termining disputed  facts  ever  devised  by  the  wit  of  man.  I 
mean,  of  course,  where  the  jury  act  as  fair  men,  uninfluenced 
by  passion  or  prejudice. 

The  verdict  is  the  average  judgment  of  twelve  men  on 
the  disputed  poiut.  One  mind  is  apt  to  go  astray  in  its 
conclusions,  unless  checked  and  moderated  by  the  views 
of  some  other,  who  looks  at  the  question  from  another 
station,  seeing  it  in  another  light,  and  having  attended  to 
another  part  of  the  subject  perhaps  overlooked  by  the 
other.  Again,  this  case  was  three  times  laboriously 


470      COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

argued  on  the  merits  before  the  Chancellor,  and  carefully 
considered  by  him.  Although  this  is  a  court  of  appeal  upon 
the  whole  case,  hearing  it  de  novo,  yet  some  respect  is  due  to 
the  judgment  of  the  court  below  on  a  question  of  fact,  at  all 
events  where  the  law  and  evidence  do  not  clearly  lead  us  to 
a  contrary  conclusion. 

The  last  and  least  reason  having  any  operation  on  my 
mind  is  that,  if  the  decree  be  affirmed,  the  loss  to  be  sus- 
tained by  the  failure  of  this  enterprise  will  fall  where 
natural  justice,  irrespective  of  the  agreement  of  the 
parties,  would  place  it — upon  its  principal  promoters — 
those  who,  in  the  period  of  its  apparent  success,  reaped 
its  substantial  benefits — for  whom  its  labors  were  ex- 
pended— whose  property,  large  in  extent  and  value,  was, 
by  means  of  it,  made  to  yield  such  increased  profits  as  to 
rob  the  final  catastrophe  of  all  its  terrors,  leaving  them 
with  the  loss  of  all  their  expenditure  in  original  stock 
and  in  this  loan,  it  would  seem,  from  the  evidence,  not 
materially  worse  off  than  if  they  had  not  so  invested  the 
money.  To  me,  all  these  parties  are  strangers,  and  I  came 
to  the  consideration  of  the  case  with  no  prepossessions  to  be 
removed  or  prejudices  to  be  overcome,  impressed  with  the 
magnitude  of  the  stake  subject  to  my  award.  I  have  given 
it  a  long  and  anxious  examination,  sincerely  desirous  to  do 
justice  according  to  the  principles  and  rules  controlling  the 
action  of  a  court  of  equity  in  the  last  resort ;  and,  as  the 
result,  my  mind  has  settled  down  into  a  firm  conviction  that 
the  complainants'  case  cannot  be  supported  either  on  the  law 
or  the  evidence,  and  that  the  final  decree  appealed  from 
should  be  affirmed. 

OGDEN,  J.  The  amount  involved  in  this  issue,  the 
length  of  time  which  has  elapsed  since  the  bill  of  com- 
plaint was  filed,  the  graveness  of  the  questions  which  are 
presented,  and  the  great  industry  and  zeal  displayed  by 
counsel  upon  the  argument  before  this  forum  of  the  last 
resort,  invest  the  case  with  peculiar  importance,  and  de- 


NOVEMBER  TERM,  1860.  471 


Black  v.  Shreve. 


mancl  for  it  the  full  and  thorough  investigation  and  consider- 
ation of  the  court. 

The  appellants,  having  been  unsuccessful  in  all  their 
previous  applications  for  the  relief  sought  by  them,  still 
have  confidence  in  the  justness  of  their  claim;  and  they 
are  entitled  to  the  patient  examination  of  their  case  in 
this  ultimate  tribunal,  uninfluenced  by  previous  results. 
Their  bill  of  complaint  was  filed  on  the  llth  of  June, 
1846,  against  parties  who  signed  and  sealed  a  certain 
covenant  and  the  personal  representatives  of  such  of 
them  as  had  died.  It  prayed  for  a  discovery,  from  the 
defendants  therein  named,  whether  certain  persons,  on 
the  2d  of  June,  1845,  were  solvent  and  able  to  pay  to  the 
complainants  proportionate  parts  of  a  loss  and  deficiency 
alleged  in  the  bill  to  have  been  sustained  by  them  through 
a  loan  which  they  had  made  to  the  Delaware  and  Atlantic 
Railroad  Company.  It  charged  that  the  defendants  were 
liable  to  them  for  contribution  by  virtue  of  their  cove- 
nant, dated  the  second  of  February,  1835;  and  it  further 
prayed  that  an  account  might  be  taken  of  what  was 
jointly  due  and  owing  to  them  upon  the  covenant,  and 
that  the  defendants  should  be  decreed  to  pay  their  respec- 
tive proportions  of  the  loss  or  deficiency  which,  according 
to  the  true  intent  and  meaning  of  the  covenant  and  upon 
the  principles  of  equity,  they  ought  to  pay. 

The  whole  merits  of  the  case,  as  contended  for  by  the 
complainants,  rest  upon  the  binding  effect  of  the  cove- 
nant as  an  executed  contract,  they  insisting  that  it  is 
available  in  their  hands  as  plenary  evidence  of  an  exist- 
ing agreement,  entered  into  by  those  who  signed  it,  to 
bear  and  sustain  with  them  an  equal  portion  of  such  loss 
and  deficiency  as  might  result  from  making  the  loan  j 
and  the  defendants  insisting  that  the  paper  was  not  to  be 
delivered  as  a  binding  agreement  until  it  should  be  signed 
and  sealed  by  all  the  then  stockholders  in  the  Delaware 
and  Atlantic  Railroad  Company ;  and  that,  as  it  has  to  it 
the  signatures  of  only  twenty-one  out  of  thirty-seven  stock- 


472      COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

holders,  the  complainants  could  not  have  become  pos- 
sessed of  the  instrument  by  a  legal  delivery  of  it  to  them 
as  an  executed  contract.  The  final  hearing  was  had  be- 
fore the  Chancellor,  on  the  1st  day  of  July,  1858,  on  the 
bill,  answer,  proofs  and  the  verdict  of  a  jury,  rendered 
upon  a  feigned  issue,  awarded  by  the  Chancellor,  on  his 
own  suggestion,  to  be  tried  in  the  Supreme  Court  by  a 
jury  of  the  county  of  Burlington,  directing  them  to  in- 
quire and  determine  whether  an  instrument,  bearing  date 
the  2d  day  of  February,  1835,  set  out  in  the  complainants' 
bill,  was  executed  by  the  parties  thereto  as  their  act  and 
deed  unconditionally,  or  upon  the  understanding  or  agree- 
ment that  the  same  should  also  be  executed  by  the  re- 
maining stockholders  of  the  Delaware  and  Atlantic  Rail- 
road company  before  it  should  be  delivered  as  an  agree- 
ment binding  upon  the  subscribers ;  and  whether  the 
same  ever  was  in  point  of  fact  legally  delivered  by  the 
parties  thereto,  or  by  their  authority,  to  the  said  com- 
plainants, or  either  of  them.  The  response  of  the  jury 
was,  that  the  agreement  was  signed  conditionally,  upon  the 
understanding  and  agreement  that  it  should  not  be  de- 
livered as  binding  before  it  was  executed  by  all  the  stock- 
holders; and  that  it  never  was,  in  point  of  fact,  legally 
delivered  by  the  parties  thereto,  or  by  their  authority,  to 
the  complainants,  or  to  either  of  them.  The  Chancellor 
thereupon,  and  upon  a  full  consideration  of  the  whole 
case,  ordered  that  the  bill  of  complaint  should  be  dis- 
missed, with  costs. 

The  petition  of  appeal,  dated  February  24th,  1859, 
which  should  contain  briefly  the  grounds  of  appeal,  states 
that  the  appellants,  complainants  below,  are  aggrieved 
because  the  decree  adopts  and  is  founded  upon  the  pro- 
ceedings respecting  the  feigned  issue,  in  which  the  Chan- 
cellor, in  his  interlocutory  decree  directing  the  issue,  also 
directed  that  the  bill  and  answer  filed  in  the  case  might 
be  read  in  evidence  by  either  party,  and  likewise  the  de- 
positions of  such  witnesses  as  had  theretofore  been  ex* 


NOVEMBER  TERM,  1860.  473 

Black  v.  Shreve, 

amined,  and  might  be  dead  or  incapable  of  attending 
from  sickness  or  be  out  of  the  jurisdiction  of  the  court  at 
the  time  of  the  trial  ;  and  because  the  decree  confirms 
the  verdict  of  the  jury  and  the  report  of  the  justice  before 
whom  the  issue  was  tried  at  the  circuit.  The  petition 
also  states  that  the  justice,  on  the  trial  at  the  circuit, 
admitted  illegal,  and  rejected  legal  evidence,  and  charged  the 
jury  contrary  to  law. 

It  further  alleges,  as  a  grievance,  that  the  Chancellor, 
on  the  coming  in  of  the  posted,  refused  to  grant  a  new 
trial  on  the  feigned  issue  j  and  that  he  also  refused  to 
grant  a  re-hearing  before  himself;  and,  finally,  that  he  re- 
fused to  allow  the  complainants  to  be  sworn  or  examined 
to  disprove  the  allegations  contained  in  the  answer  of  the 
defendants. 

Having  the  general  grounds  of  appeal  thus  before  us,  it  is 
necessary  that  the  whole  cause  should  be  carefully  examined, 
so  that  we  may  correctly  adjudicate  upon  the  rights  of  the 
respective  parties. 

The  bill  of  complaint  states  the  incorporation  of  a  rail- 
road company,  at  the  time  of  filing  thereof  known  as  the 
Delaware  and  Atlantic  Railroad  Company,  its  organiza- 
tion, and  the  purpose  of  its  creation  ;  that  the  company 
became  embarrassed  from  the  inadequacy  of  their  funds, 
which  were  insufficient  to  complete  their  road  ;  and  that, 
on  the  9th  of  January,  1835,  at  a  general  meeting  of  the 
directors  and  stockholders  of  the  company,  held  upon 
personal  notice  given  to  each  one,  a  statement  of  the 
affairs  and  finances  of  the  company  was  submitted  to 
them,  an  examination  of  the  state  and  condition  of  the 
road  was  made,  and  that  it  was  ascertained  that  the  com- 
pany was  largely  indebted,  and  that  the  sum  of  $9772  was 
then  estimated  as  a  sum  necessary  for  the  purchase  of 
rails  and  for  other  expenditures  which  would  be  required 
for  completing  the  road,  so  as  to  enable  it  to  fulfill  the 
objects  for  which  its  construction  had  been  undertaken, 
and  to  enable  the  company  to  derive  from  it  a  revenue. 


474      COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

The  bill  proceeds  to  state  that  the  persons  there  assem- 
bled resolved  that  the  company  should  borrow  the  sum 
of  $35,000,  which  sum  appeared  to  be  necessary  for  dis- 
charging their  indebtedness  and  for  completing  the  road  ; 
and  that  one  Chalkley  Atkinson,  with  John  Black  and 
Benjamin  Jones  (two  of  the  complainants)  were  appointed 
a  committee  to  negotiate  the  loan  for  and  on  the  credit  of 
the  company,  who,  subsequently,  on  the  23d  of  January, 
reported  to  a  second  general  meeting  of  directors  and 
stockholders  that  their  efforts  had  proved  utterly  unavail- 
ing ;  that  at  this  crisis  in  the  affairs  of  the  company,  the 
complainants  were  induced,  by  the  offer  of  the  bond  and 
mortgage  of  the  company,  and  especially  by  the  offer  of  the 
covenant  or  agreement  thereinafter  set  forth,  to  borrow  on 
their  own  credit,  and  to  lend  and  advance  to  the  company  as 
a  loan  to  and  for  their  use,  the  sum  of  $35,000;  that  the 
bond  of  the  company,  bearing  date  the  second  day  of  Feb- 
ruary, 1835,  in  the  penal  sum  of  $70,000  was  duly  executed 
and  delivered  to  the  complainants  for  the  payment  of  the 
said  loan  in  five  years  from  date,  with  interest  payable  half- 
yearly  ;  and  that  a  mortgage  to  secure  the  payment  of  the 
bond  was  also  delivered  by  the  company  to  the  complainants, 
duly  executed  and  conveying  all  the  lands  within  the  bounds- 
of  their  railroad. 

The  bill  then  states,  that  in  order  to  indemnify  the  com- 
plainants againsi    more    than  a  proportionate  part  of    any 
Joss    that    might    arise    in  consequence  of    the    mortgaged 
property  proving  insufficient   to   pay  the  said  debt,  and  in 
,  consequence    of    an    agreement   to  that    effect     made   pre- 
vious  to   the   complainants  consenting  to  loan  the  money, 
v -which    mainly  induced    them    to  .  make    the    loan,  the   de- 
ifendanta  named  in  the  bill  a»d  those  whom  some  of  them 
i represent,     together    with     the     complainants,     all      being 
stockholders    in    the   company,    did     make,   execute,    enter 
•  into  and   deliver  a  certain   covenant   or   agreement,   bear- 
ing date  the  2d  of  February,  1835,  as  follows,  reciting  the 
^instrument   in  writing  in  words,  &c.x  and   that  it  was  ©*» 


NOVEMBER  TERM,  1860.  475 


Black  v.  Shreve. 


the  faith  and  security  of  the  said  covenant  that  the  complain- 
ants were  induced  to  make  the  loan,  and  without  it  that  said 
loan  could  not  have  been  obtained  from  them. 

It  is  further  set  forth  in  the  bill,  that  on  the  pecond  day 
of  June,  one  thousand  eight  hundred  and  forty-five,  after 
deducting  the  avails  of  a  sale  of  the  mortgaged  property, 
and  all  the  dividends,  proceeds  and  profits  of  the  road  which 
came  to  the  hands  of  the  complainants,  there  remained  a 
balance  of  $54,552.89,  for  principal  and  interest  due  and 
payable  to  them,  as  a  loss  and  deficiency  upon  the  sum  loaned 
by  them  to  the  company. 

The  bill,  as  amended,  charges  that  on  the  said  second 
day  of  June,  1845,  when  the  loss  and  deficiency  were 
ascertained,  the  parties  to  the  covenant,  other  than  the 
complainants,  who  then  remained  solvent  and  able  to 
pay,  and  the  estates  of  such  other  parties  who  had  died, 
which  then  remained  solvent,  became  and  were  then,  and  at 
the  time  of  filing  the  bill,  liable  and  bound  to  bear  and  sus- 
tain the  loss  and  deficiency  equally  with  the  complainants,  or 
some  part  thereof. 

The  equity  of  the  bill  is  put  on  the  ground  that  the 
solvency  or  insolvency  of  the  surviving  parties  to  the  in- 
strument, and  of  the  estates  of  such  of  them  as  were 
deceased,  and  their  ability  to  pay  their  respective  propor- 
tions of  the  loss  and  deficiency,  was  a  fact  almost  always 
exclusively  iu  the  knowledge  of  the  party  himself  or  of 
the  personal  representatives  of  his  estate,  and  was  not 
capable  of  proof  by  another  without  a  discovery  from  the 
parties  themselves,  severally  and  respectively,  and  from 
the  representatives,  respectively,  of  such  as  were  dead, 
and  also  on  the  ground  that  the  complainants  being  likewise 
covenantors,  parties  in  the  instrument,  could  not  sustain  an 
action  at  law  upon  it. 

The  defendants,  in  their  answer,  admit  the  incorpora- 
tion and  organization  of  the  Delaware  and  Atlantic  Rail- 
road Company  and  their  financial  embarrassments,  they 
also  admit  the  several  general  meetings  of  the  directors 


476   "  COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shrere. 

and  stockholders,  and  that  it  was  resolved  to  make  a 
loan  of  money  to  the  amount  of  $35,000,  and  that  the 
persons  named  in  the  bill  as  a  committee  reported  that 
the  money  could  not  be  procured  on  the  security  of  the 
road.  They  state,  as  an  extract  from  the  minutes  of  a 
meeting  of  the  stockholders,  held  on  the  23d  day  of  Jan- 
uary, 1835,  "  that  it  was  resolved,  and  agreed  by  the 
stockholders,  that  John  Black,  Joseph  Smith  and  Ben- 
jamin Jones  do,  by  their  joint  obligations,  get  the  sum  of 
$35,000 ;  and  that  they  have  a  mortgage  on  the  road  de- 
livered to  them  ;  and  that  the  remaining  stockholders  exe- 
cute a  joint  bond  to  the  said  persons  so  loaning  the 
money,  as  security  to  them  in  case  of  any  losses  sustained 
by  said  loan,  each  one  to  bear  his  proportion  of  the  loss." 
It  is  further  stated,  in  the  answer,  that  on  the  2d  of  Feb- 
ruary, the  mortgage,  bond  and  covenant  were  reported 
to  a  meeting  for  examination,  and  were  sanctioned  and 
adopted  ;  that  the  bond  and  mortgage  were  then  executed 
and  delivered  ;  but  that  the  covenant  to  indemnify  was 
not  then  executed  and  delivered  by  the  stockholders  of 
the  company,  a  part  of  whom  only  were  present  at  the 
meeting;  that  at  a  subsequent  day  or  days,  a  covenant  of  the 
general  tenor  and  effect  of  the  one  set  out  in  the  bill,  dated 
the  second  of  February,  was  executed  by  the  persons  stated 
in  the  bill. 

The  defendants  then  answering,  each  severally  for 
himself,  say  that,  as  well  at  the  time  of  the  passage  and 
of  the  entry  in  the  minutes  of  the  resolution  for  the  exe- 
cution of  the  covenant  and  agreement,  as  at  the  time 
of  the  execution  thereof,  it  was  expressly  understood  and 
agreed  by  and  between  the  parties  thereto,  that  the  same 
was  to  be  executed  by  att  the  stockholders  of  the  com- 
pany, and  that  it  was  not  to  be  obligatory  and  binding 
on  such  as  did  execute  until  it  was  so  executed  by  the 
other  stockholders,  and  that  the  complainants  were  cog- 
nizant of  and  parties  to  the  agreement;  and  they  aver,  in 
their  answer,  that  the  said  covenant  to  indemnify  never 


NOVEMBER  TERM,  1860.  477 

Black  v.  Shreve. 

was,  and  never  could  have  been  delivered  as  a  binding  agree- 
ment, until  the  other  stockholders  executed  the  same;  that 
in  point  of  fact,  only  twenty-one  out  of  thirty-seven  stock- 
holders executed  it,  and  those  not  at  one  time,  but  at  differ- 
ent times;  and  that  many  who  did  sign,  as  well  as  those  who 
refused  to  sign,  were  urged  to  execute  it  on  the  special  ground 
that  it  was  to  be  only  binding  on  those  who  did  execute  it  in 
the  event  of  its  execution  by  all. 

The  defendant  John  Chambers,  the  holder  of  forty  shares 
of  the  stock,  in  the  answer  says  that  he  objected  and  utterly 
refused  to  execute  the  paper,  until  he  was  told  by  John  Black, 
one  of  the  complainants,  that  all  were  to  execute  it,  and  that 
he  never  would  have  executed  it  but  for  such  representation. 
And  the  defendants,  in  their  answer,  insist  that  the  attempt 
to  enforce  the  agreement  against  them,  being  a  part 
only  of  the  stockholders,  is  unjust  and  fraudulent,  and 
that  the  agreement  is  not,  in  law  or  equity,  binding 
upon  any  of  them,  but  as  to  them,  is  utterly  void  and  of  no 
effect. 

If  the  question  was  placed  on  the  bill  and  answers  alone, 
the  whole  case  of  the  complainants  would  necessarily  fall, 
because  the  answers  directly  contradict  the  most  material  alle- 
gation of  the  bill,  to  wit,  that  the  covenant  to  indemnify  was 
entered  into,  and  was  delivered  to  the  complainants  as  a  sub- 
sisting agreement. 

The  fact  of  its  being  in  the  custody  of  one  of  them, 
could  not  shake  the  evidence  furnished  by  the  answers, 
inasmuch  as,  being  covenanting  parties  to  it  themselves, 
by  their  signatures  and  seals,  they  would  have  as  much 
rig'ht  to  hold  it  until  perfected,  as  any  one  of  the  defend- 
ants would  have.  The  complainants,  by  their  replica- 
tion, put  all  the  allegations  of  the  answers  in  issue,  and 
some  thirty-five  witnesses  were  sworn  and  examined  by  the 
parties.  • 

The  cause  was  first  argued  before  the  Chancellor,  in 
the  term  of  February,  1856,  upon  the  bill,  answers,  depo- 

VOL.  II.  2  Q 


478       COURT  OF  ERRORS  AND  APPEALS. 

Black  T.  Shreve. 

sitions  and  proofs;  and,  having  taken  time  for  examination 
of  the  case,  and  advisement  until  the  26th  day  of  Novem- 
ber following,  the  Chancellor  then  directed  the  feigned  issue 
to  be  formed  in  the  Supreme  Court,  to  try  and  determine 
upon  the  validity  of  the  covenant  as  an  existing  binding 
agreement,  whether  the  execution  of  the  instrument  was  con- 
summated by  delivery. 

At  this  point  of  the  case,  the  appellants  complain  of  the 
Chancellor,  and  say  that  he  had  no  right  to  transfer  the  set- 
tlement of  that  question  of  fact  to  a  jury.  The  practice  of 
the  court  has  always  been,  in  the  exercise  of  its  discretion,  if 
it  thinks  the  rights  of  the  parties  can  thereby  be  more  cer- 
tainly and  satisfactorily  settled,  to  direct  a  strongly  contro- 
verted matter  of  fact  to  be  tried  in  a  court  of  common  law 
by  a  jury.  In  some  instances,  it  has  been  done  on  the  appli- 
cation of  a  party,  and  in  others  on  the  mere  motion  of  the 
court,  in  order  to  relieve  its  own  conscience,  and  to  be  satis- 
fied, by  the  verdict  of  a  jury,  of  the  truth  or  falsehood  of 
the  facts  controverted.  , 

The  power  is  given,  in  this  state,  by  legislation,  found  in 
Nixon,  p.  92,  §  44,  and  it  has  been  recognized  in  several 
instances  here,  and  also  in  other  states.  1  Saxton  206,  Miller 
and  Stiger  v.  Wack  et  aL;  1  Green's  Ch.  132,  Trenton  Bank- 
ing Company  v.  Woodruff  et  aL ;  1  Johns.  Cases  436,  Le 
Guen  v.  Governeur  and  Kemble,  6  Johns.  Ch.  255 ;  4  Blatch- 
ford  116,  Kay  v.  Doughty. 

Although  the  power  exists  in  the  court,  its  discretion  on 
the  subject  should  be  sparingly  exercised.  It  seems  to  me 
that  the  agency  of  a  jury  was  eminently  proper  in  the  case 
before  us.  As  already  stated,  the  whole  merits  depend  upon 
questions  of  fact. 

If  the  rights  of  the  parties  as  to  the  ratio  of  contri- 
bution, which  would  result  from  the  due  execution  and 
delivery  of  the  covenant,  could  have  been  adjusted  and 
secured  without  the  aid  of  equity,  a  common  law  court 
would  have  been  the  appropriate  tribunal  for  settling  the 
whole  case,  and  hence  the  Chancellor  acted  wisely  in  re- 


NOVEMBER  TERM,  1860.  479 

Black  v.  Shreve. 

ferring  to  a  jury  the  finding  of  these  important  controlling 
facts,  whether  or  not  the  paper  was  signed  and  sealed 
unconditionally,  and  whether  it  ever  was  legally  delivered 
by  the  parties  thereto  to  the  complainants  before  he  at- 
tempted to  grant  the  relief  prayed  for  in  the  bill  of  com- 
plaint. 

A  concise  summary  of  the  practice  which  regulates  the 
power  and  discretion  of  the  court  in  calling  in  the  aid  of 
a  common  law  tribunal  to  obtain  its  opinion  on  a  matter 
of  fact,  will  be  useful  in  testing  the  validity  of  the  re- 
maining objections  to  the  proceedings  which  were  had  in  this 
case. 

The  manner  of  the  proceeding  is  entirely  under  the 
control  of  the  court  of  equity.  It  will  often,  by  its  order, 
suspend  certain  of  the  rules  of  evidence  for  the  purpose 
of  affording  facilities  for  the  trial  of  the  issue.  It  fre- 
quently will  direct  the  examination  of  one  or  more  of  the 
parties  to  the  suit.  It  also  will  direct  that  the  parties  be 
at  liberty  ^o  read  the  depositions  taken  in  the  cause  of 
such  of  the  witnesses  as,  upon  the  trial,  shall  be  proved 
to  be  dead  or  unable  to  attend  to  be  examined.  As  the 
whole  proceeding  takes  place  for  the  purpose  of  inform- 
ing the  conscience  of  the  court,  it  is  not  bound  down  strictly 
to  the  forms  and  incidents  of  a  regular  common  law  trial. 
After  the  poslea  has  been  returned,  the  Chancellor,  if  he 
thinks  fit,  may  make  no  use  whatever  of  the  verdict,  but  may 
treat  it  as  a  mere  nullity.  Gresky's  Equity  Evidence,  from 
page  401  to  405. 

So  also  in  2  DanidCe  Chancery  Practice  987.  In  order- 
ing the  trial  of  a  question  of  fact  at  law,  that  court  is  not 
left  to  proceed  entirely  on  its  own  rules  of  evidence,  but 
rules  in  equity  are  frequently  introduced.  This  is  done  by 
the  Chancellor  ordering  the  answer  of  a  defendant  to  be  read 
as  evidence  upon  the  trial  of  the  issue,  for  the  purpose  of  al- 
lowing the  defendant  to  have  it  contrasted  with  the  evidence 
of  the  witnesses. 

In  Marston  v.  Brackdt,  9  N.  Hamp.  R.  350,  it  was  held 


480      COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

that  the  manner  of  proceeding  to  the  trial  of  issues  from 
chancery  is  under  the  control  of  that  court.  If,  after  the 
evidence  has  been  taken  for  the  hearing,  the  party  moves 
for  a  trial  by  jury,  the  case  should  be  tried  there  upon 
the  same  evidence  on  which  it  would  have  been  tried  had  it 
been  examined  before  the  Chancellor,  unless,  upon  cause 
shown,  he  makes  an  order  permitting  further  evidence  to  be 
introduced. 

2  Daniell  1297. — The  court  directs  the  trial  in  such  a 
way  that  all  productions  shall  be  made  which  it  conceives  to 
be  useful  on  that  trial — the  creature  of  its  own  direction — and 
it  may  impose  such  restrictions  on  the  parties  as  will  pre- 
vent all  fraud  and  surprise  on  the  trial.  Again,  p.  1300, 
the  course  of  proceeding  upon  the  trial  of  the  issue  is 
generally  the  same  as  that  adopted  in  ordinary  trials  at 
law,  except  where  the  Court  of  Chancery  has  given  any 
special  directions  on  the  subject.  It  is  merely  a  judicial 
proceeding  to  inform  the  conscience  of  the  court.  Page 
1306. — There  is  a  material  difference  between  courts  of 
law  and  courts  of  equity  in  the  rules  by  which  they  are 
guided  in  granting  new  trials.  The  general  principle 
acted  on  by  a  court  of  equity  is,  that  if  the  application 
rests  solely  on  the  ground  that  the  verdict  was  against  the 
weight  of  evidence,  and  the  judge  states  thai,  upon  the 
whole,  he  was  not  dissatisfied  with  it,  the  court  will  not 
direct  a  new  trial.  Same,  p.  1310. — A  new  trial  may  be 
directed  on  the  ground  of  a  misdirection  of  the  jury  by 
the  judge,  or  because  evidence  which  was  offered  was 
improperly  rejected,  unless  the  court  is  satisfied  that  the 
verdict  is  right,  considering  all  the  evidence,  including  that 
which  was  rejected. 

In  5  Johns.  Ch.  148,  Van  Alst  et  al.  v.  Hunter  et  al.t 
it  rests  entirely  in  the  discretion  of  the  Chancellor  to 
award  a  new  trial  or  not,  according  to  the  circumstances  and 
testimony  in  the  case. 

It  was  objected,  on  the  argument,  that  the  Chancellor 
should  have  set  the  verdict  aside,  and  have  ordered  a  new 


NOVEMBER  TERM,  1860.  481 


Black  v.  Shreve. 


trial  at  law,  because  the  judge  at  the  circuit  admitted  illegal 
evidence,  and  rejected  legal  evidence,  and  charged  the  jury 
contrary  to  law.  Upon  a  careful  examination  of  the  charge 
of  the  judge,  I  do  not  find  that  he  stated  any  principle  of 
law  whatever,  to  which  the  plaintiffs  could  o'ject,  unless  it 
was  in  his  direction  to  the  jury,  that  the  evidence  before 
them  had  not  made  a  case  which  comes  within  the  rule  ;  that 
if  a  deed  absolute  on  its  face,  be  delivered  by  the  grantor  to 
the  grantee,  it  takes  effect  at  once,  as  an  absolute  deed,  and 
cannot  be  avoided  by  parol  proof  of  a  condition  precedent 
unperformed.  There  certainly  is  no  error  in  this.  It  was 
not  insisted  on  by  the  defendants,  that  although  the  instru- 
ment was  delivered  by  them  to  the  plaintiffs,  its  efficacy,  as 
an  absolute  deed,  depended  upon  the  performance  of  a  con- 
dition ;  but  the  whole  defence  rested  on  the  contention  that 
the  covenant  had  never  been  completed  nor  delivered,  and 
hence  that  it  was  of  no  vitality  in  the  hands  of  the  plain- 
tiffs. 

This  direction  of  the  judge  also  involves  the  legality  of 
his  rulings  upon  the  admission  of  evidence,  which  was  ob- 
jected to  by  the  plaintiffs.  He  admitted  parol  testimony  to 
show  the  facts  by  which  the  defendants  sought  to  overcome 
the  prima  facie  case  made  by  the  plaintiffs,  in  their  having 
the  covenant  absolute  on  its  face,  in  their  possession.  That 
testimony  did  not  tend  to  contradict  the  written  instrument,  but 
it  was  introduced  to  show  that  the  paper  could  not  have  come 
into  the  hands  of  the  plaintiffs  by  a  delivery  from  the  defend- 
ants, or  any  of  them,  as  an  executed  covenant.  The  view 
which  is  taken  by  the  Chancellor,  of  this  matter,  in  his 
opinion,  is  clear  and  conclusive,  and  he  is  fully  sustained  by 
the  authorities  quoted.  It  will  be  sufficient,  in  this  place,  to 
cite  the  cases  without  a  further  statement  of  the  rulings.  6 
English  Com.  Law  479,  Johnson  et  al.  v.  Baker  ;  1  Wend.  478, 
Roberts  v.  Jackson;  1  Peters  435,  Duncan's  Heirs  v.  U.  S.; 
11  Peters  86,  U.  States  v.  Jacob  and  others;  3  Green  155, 
Slate  Bank  v.  Evans.  So,  likewise,  1  Greenl.  Ev.,  §  284. 


482   COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

The  judge  committed  no  error  in  admitting  that  character 
of  testimony,  nor  did  he  err  in  his  instructions  as  to  the 
effect  of  a  responsive  answer  as  evidence  for  a  defendant.  It 
is  a  fixed  principle  in  the  administration  of  equity  jurispru- 
dence, that  the  defendant  is  entitled  to  the  benefit  of  his 
answer  as  testimony;  and  such  portions  of  it  as  are  respon- 
sive to  the  allegations  of  the  bill,  and  do  not  set  up  new 
matter,  must  be  overcome  by  the  oaths  of  two  credible  wit- 
nesses, or  of  one  witness,  confirmed  by  strong  corroborative 
circumstances. 

In  thus  instructing  the  jury,  telling  them,  in  addition,  that 
the  weight  of  that  piece  of  evidence  was  exclusively  for  their 
consideration,  he  did  no  injustice  to  the  complainants.  Sev- 
eral objections  were  made  at  the  trial,  to  the  introduction  of 
the  written  testimony  of  John  Gibbs,  taken  in  the  examination 
of  witnesses  in  chancery.  It  was  contended  that,  as  the 
second,  third,  and  fourth  questions  and  answers  were  objected 
to  before  the  examiner,  the  judge  should  exclude  them  from 
the  consideration  of  the  jury.  The  introduction  of  the  depo- 
sition as  evidence,  was  done  by  an  order  of  the  Court  of 
Chancery.  That  order  was  made  with  the  knowledge  of  both 
of  the  solicitors  of  the  parties.  The  testimony  had  been 
read  and  used  on  the  hearing,  before  the  feigned  issue  was 
directed. 

If  the  counsel  desired  the  decision  of  the  examiner  to 
be  reviewed,  the  proper  time  for  calling  attention  to  the 
subject  was  on  the  hearing  before  the  Chancellor,  in  Feb- 
ruary, 1856,  or,  at  farthest,  when  the  order  for  the  issue 
was  made.  The  Chancellor  ordered  that  certain  testi- 
mony, taken  in  the  usual  course  of  proceedings  in  the 
court,  should  be  read  on  a  trial  at  law — which  trial  was  a 
creature  of  his  own  direction — and  it  would  have  been 
wrong  for  the  judge  at  the  circuit  to  have  questioned  the 
legality  of  the  testimony  which  the  Court  of  Chancery 
had  directed  him  to  submit  to  the  jury.  It  must  be  as- 
sumed that  the  Chancellor  had  passed,  in  his  own  mind, 
upon  the  legality  of  the  testimony  of  Mr.  Gibbs,  before  he 


NOVEMBER  TERM,  1860.  483 

Black  v.  Shreve. 

directed  that,  as  an  entirety,  it  should  be  laid  before  the  jury, 
in  case  the  witness  should  be  incapable,  through  sickness, 
from  attending  at  the  time  of  the  trial,  or  be  then  out  of  the 
jurisdiction  of  the  court. 

It  was  also  objected  that  the  book  in  which  the  minutes 
of  the  proceedings  of  the  stockholders  were  entered  was 
improperly  admitted  as  competent  testimony  before  the 
jury. 

The  proceedings  of  the  stockholders,  when  convened, 
were  entered  by  the  secretary  in  the  book  wherein  the 
record  of  the  meetings  of  the  directors  was  kept,  and  the 
authenticity  of  the  book  was  established  by  several  wit- 
nesses. It  appeared  in  evidence  that  the  minutes  thus 
kept  were  read  at  the  meetings  of  the  stockholders  and 
were  approved  by  them  ;  and  certainly  they  were  compe- 
tent testimony  to  confirm  the  recollections  of  the  defend- 
ants and  witnesses  as  to  the  deliberations  and  conclusions 
of  the  persons  who  were  in  conference  with  John  Black 
and  Joseph  Smith,  on  the  several  occasions  when  the  sub- 
ject of  the  covenant  was  discussed.  They  were  not  read 
for  the  purpose  of  binding  absent  stockholders  to  the  per- 
formance of  an  act  resolved  on  by  their  co-stockholders,  but 
merely  to  throw  light  upon  the  question  of  general  intent, 
when  the  indemnity  was  talked  about,  and  its  extent  was  de- 
termined upon. 

The  complainants  state  in  their  bill,  that  meetings  of 
the  stockholders  took  place,  and  that  it  was  resolved  and 
determined  on  by  them  at  their  meetings  to  take  action 
for  the  relief  of  the  company.  The  book  of  minutes  re- 
ceived in  evidence  shows  the  several  meetings  to  which 
reference  is  made  in  the  bill  of  complaint,  but  it  also 
shows  that  the  instrument  of  indemnity  was  to  be  exe- 
cuted by  all  the  stockholders.  The  resolution  of  those 
persons,  thus  convened,  could  not  bind  the  absent  stock- 
holders to  put  their  names  to  the  proposed  paper,  but  it 
is  expressive  of  the  condition  upon  which  those  who  made 
the  proposition,  that  the  money  should  be  procured  by 


484   COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

the  complainants  would  become  personally  responsible  to 
them. 

The  judge  instructed  the  jury  that  it  was  within  their 
province  to  determine  how  far  the  minutes  produced  had 
been  proved  to  be  a  correct  record  of  what  occurred  at 
the  several  meetings  of  the  stockholders,  and  that  they 
should  give  such  weight  to  the  book  as  they  might  think, 
upon  the  evidence  connected  with  it,  that  it  was  entitled 
to  receive.  There  was  no  error  in  the  admission  of  that 
testimony. 

1  The  appellants  further  complain  that  the  judge  refused 
to  permit  John  Black,  one  of  the  complainants,  to  be 
sworn  before  the  jury.  It  appears  in  the  printed  case  be- 
fore us  that,  on  the  coming  in  of  the  postea,  the  judge  fur- 
nished the  Chancellor  with  his  minutes  of  the  proceedings 
of  the  trial,  showing  the  order  in  which  the  testimony  was 
offered  and  read  by  the  counsel  for  the  respective  parties,  and 
accompanied  with  his  certificate  that,  although  the  case  was 
not  free  from  difficulty,  yet,  on  the  whole,  he  was  satisfied 
with  the  verdict. 

Those  notes  show  that  the  bill  of  complaint  and  the 
answer  were  read  in  defence  on  the  first  day  of  the  trial, 
and  that,  on  the  third  day,  after  all  the  testimony  was  in 
before  the  jury,  Mr.  Black  was  offered  as  a  witness,  not 
generally,  but  to  disprove  the  allegations  of  the  answers 
which  had  been  read.  The  admissibility  of  the  party  as 
a  witness  rests  upon  the  second  section  of  an  act  of  the 
legislature,  which  was  approved  on  the  5th  of  April,  1855, 
and  went  into  effect  on  the  4th  of  July.  The  first  sec- 
tion of  the  act  provides  that  interest  in  the  event  of  an 
action  or  proceeding  shall  only  affect  the  credit  of  a 
witness,  not  his  competence ;  and,  in  the  next  section,  it 
is  enacted  that  the  first  section  shall  not  be  so  construed 
as  to  render  a  party  to  an  action  or  proceeding  competent 
to  testify  in  his  own  behalf;  "  provided,  however,  that 
the  complainant  or  petitioner  in  an  action  or  proceeding 
of  an  equitable  nature,  in  any  court,  shall  be  a  competent 


NOVEMBER  TERM,  1860.  485 


Black  v.  Shreve. 


witness  to  disprove  so  much  of  the  defendant's  answer  as  may 
be  responsive  to  the  allegations  contained  in  the  bill  of  com- 
plaint or  petition." 

It  is  manifest  that  if  the  proceeding  had  originated  by  an 
action  instituted  in  the  Supreme  Court,  and  it  had  been  com- 
petent to  show  the  contents  of  an  answer  in  chancery,  that 
the  plaintiff  could  not  have  been  used  as  a  witness  in  his  own 
behalf.  What,  then,  was  the  nature  of  the  proceeding  which 
was  heard  before  Justice  Potts?  Was  it  of  a  legal  or  an 
equitable  nature? 

The  circuit  record,  which  was  his  authority  for  empan- 
eling a  jury,  showed  an  issue  of  fact  in  the  Supreme 
Court,  affirmed  on  the  one  side  and  denied  on  the  other, 
without  any  reference  to  former  equitable  proceedings. 
So  far  as  the  nature  of  the  proceeding  itself  was  import- 
ant, it  was  strictly  of  a  legal  character.  The  course  of 
trial  on  such  issues  is  generally  the  same  as  courts  of  law 
ordinarily  adopt,  unless  the  Chancellor  gives  some  special 
directions  for  the  purpose  of  facilitating  the  trial,  and 
preventing  fraud  and  surprise  on  either  side.  If  in  the 
present  case  the  Chancellor  had  not  directed  the  answer 
to  be  read,  and  the  depositions  of  absent  witnesses  to  be 
used,  the  judge  could  not  have  admitted  them  in  evidence, 
because  such  proofs  are  unknown  to  a  court  proceeding 
according  to  the  course  of  the  common  law.  I  am  clearly 
of  opinion  that  the  act  of  1855  was  not  applicable  to  the 
case,  and  that  the  judge  rightly  refused  to  permit  Mr. 
Black  to  be  sworn  as  a  witness.  The  party  cannot  justly 
complain  of  the  action  of  the  judge.  His  right  to  become 
a  witness  in  the  original  suit  accrued  on  the  fourth  of 
July,  1855.  He  made  no  application  to  the  Chancellor 
for  extending  the  rule  to  close  the  testimony,  so  that  he 
might  be  examined.  The  case  went  to  a  final  hearing 
upon  the  bill,  answers  and  proofs  on  the  first  of  Febru- 
ary, 1856,  and  in  November  the  feigned  issue  was  or- 
dered; yet  no  suggestion  was  made  that  the  testimony 
of  Mr.  Black  was  important  for  contradicting  the  re- 


486       COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

sponses  of  the  answers.  When  the  Chancellor  ordered 
that  the  answer  should  be  read  before  the  jury,  an  appli- 
cation could  have  been  made  to  him  to  allow  Mr.  Black 
to  be  sworn  to  disprove  the  same.  If  he  is  possessed  of 
valuable  knowledge  which  would  discredit  the  answers, 
he  should  have  made  the  fact  known  at  an  earlier  stage 
of  the  proceedings;  and,  perhaps,  by  so  doing,  he  might 
have  saved  the  delay  and  expense  incident  to  the  feigned 
issue.  It  could  not  have  been  the  intention  of  the  legis- 
lature, in  thus  infringing  upon  the  rules  and  practice  in 
equity  jurisprudence,  to  arm  a  complainant  with  a  con- 
cealed weapon,  with  which,  at  the  close  of  a  conflict,  he 
might  prostrate  his  adversary.  Such  was  the  view  of  the 
Chancellor;  and  to  prevent  an  abuse  of  the  act,  he  made  a 
rule  in  his  court,  on  the  1st  of  July,  1858,  that  a  complain- 
ant or  petitioner,  who  desired  to  avail  himself  of  the  act, 
should  be  sworn  and  examined  as  a  witness  within  twenty 
days  after  issue  joined,  and  before  any  other  witness  should 
be  examined  in  the  cause. 

The  refusal  of  the  Chancellor  to  order  a  new  trial,  be- 
cause one  of  the  subscribing  witnesses  had  returned  from 
a  European  tour  since  the  rendition  of  the  verdict,  can- 
not furnish  a  substantial  reason  for  reversing  the  final 
decree.  He  is  not  a  newly  discovered  witness;  his  ab- 
sence was  not  presented  as  a  reason  for  postponing  the 
trial  at  the  Circuit;  and  we  would  override  the  well-de- 
fined rules  which  prescribe  the  bounds  between  exact  law  and 
equitable  discretion,  if  we  should  allow  that  cause  to  influ- 
ence our  decision. 

While  I  am  not  prepared  to  say  that  the  question  whether 
a  new  trial  in  every  case  of  a  feigned  issue  is  so  entirely 
within  the  discretion  of  the  Chancellor  that  a  decree  made 
subsequent  to  and  in  conformity  with  a  verdict  which  was 
clearly  unlawful  would  not  be  reversed  on  an  appeal,  yet  I 
am  willing  to  concede  much  to  the  final  view  which  that 
court  may  take  of  the  whole  case. 

We   have   seen  that   the   Chancellor   may  disregard    the> 


NOVEMBER  TERM,  1860.  487 


Black  v.  Shreve. 


verdict  altogether,  and  although  he  may  have  ordered  an 
issue,  he  may  afterwards  fall  back  upon  the  case,  as  it 
was  made  before  the  issue  was  considered.  This  court, 
likewise,  may  so  dispose  of  the  case;  and  if  it  shall  appear 
that  substantial  justice  has  been  done,  the  irregularities 
and  illegalities  occurring  in  the  court  of  law  may  be  over- 
looked and  disregarded.  I  have  carefully  and  attentively 
examined  the  whole  case,  as  it  was  presented  to  the 
Chancellor  at  the  time  of  his  making  the  final  decree; 
and  I  am  convinced  by  the  proofs,  that  the  paper  which 
is  the  foundation  of  this  suit  was  executed  by  the  persons 
whose  names  are  to  it  conditionally,  and  that  it  never  was 
delivered  by  them,  or  with  their  knowledge  or  authority, 
to  the  complainants,  as  a  binding  contract. 

The  decree  of  the  Chancellor  should,  in  my  opinion,  be 
affirmed,  with  costs. 

The  following  dissenting  opinions  were  read  by  Judges 
VREDENBURGH  and  VAN  DYKE. 

VREDENBURGH,  J.  The  sole  point  in  this  case  is,  whether 
a  certain  bond  of  indemnity,  dated  February  2d,  1835, 
and  signed  by  both  the  complainants  and  the  defendants, 
was,  as  against  the  defendants,  legally  delivered.  The 
jury  and  the  Chancellor  have  found  as  a  fact  that  it  was 
not. 

The  bond  was  made  to  indemnify  the  complainants  for 
advancing,  on  or  about  the  9th  of  March,  1835,  $35,000  to 
the  Delaware  and  Atlantic  Railroad  Company. 

The  complainants  were  the  proper  persons  to  whom  it 
should  be  delivered.  It  was  produced  by  them  at  the 
trial.  No  point  of  time  since  the  advance  of  the  $35,000 
to  the  road,  in  March,  1835,  is  shown  when  it  was  not  in 
their  possession.  The  bill  charges  that  previous  to  the 
loan  the  bond  was  delivered.  The  answer  does  not  raise 
the  question  or  aver  that  the  bond,  at  or  previous  to  the 
loan,  did  not  come  to  the  actual  possession  of  the  com- 


488      COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

plainants.  I  see  no  reason  to  doubt  that  the  bond  did, 
at  or  about  the  time  of  the  loan,  come  to,  and  ever  since 
has  remained  in  the  physical  possession  of  the  complain- 
ants. 

But  the  question  intended  to  be  raised  by  the  defend- 
ants, and  which  is  fully  raised  by  their  answer  is,  that 
although  the  bond  was  physically,  yet  that  it  was  never 
legally  delivered.  The  reason  assigned  why  it  was  not 
legally  delivered  is  this :  those  who  signed  the  bond  were 
part,  but  not  all  the  stockholders  of  the  said  railroad 
company.  And  the  defendants  aver  that  when  the  bond 
was  signed  by  them,  respectively,  it  was  understood  by 
all  those  who  executed  it  that  all  the  stockholders  should 
execute  it  before  it  should  be  binding  upon  any,  and  that, 
consequently,  before  such  execution  by  all,  no  legal  de- 
livery could  take  place.  The  difficulty  is  not  about  the 
physical,  but  about  the  legal  delivery  of  the  bond.  If  there 
was  no  such  agreement,  there  can  be  no  question  but  that  the 
delivery  was  legal.  If  the  proof  of  the  agreement  fails,  the 
delivery  is  undoubtedly  good. 

This  raises  two  questions: 

1.  Can  the  defendants  establish  this  agreement  by  parol 
proof? 

2.  If  they  can,  have  they  done  it  ? 

First.  Is  it  competent  for  the  defendants  to  prove  by 
parol  that  the  bond  was  not  to  be  binding  on  them  unless 
all  the  stockholders  signed  it  ? 

The  bond  contains  the  names  of  none  except  those  who 
have  signed  it,  nor  does  it  refer  to  the  other  stockholders. 
The  complainants  advanced  this  $35,000  upon  the  faith 
of  it,  and  for  many  years  the  defendants  stood  by  and 
quietly  enjoyed  its  fruits.  If  the  names  of  the  other 
stockholders  had  been  upon  the  face  of  the  bond  such 
proof  would  have  been  competent.  Whether  it  would 
where  they  are  all  strangers  to  the  face  of  the  bond,  I  do 
not  intend  to  express  an  opinion.  It  certainly  would  be 
of  very  dangerous  tendency.  But  whatever  doubt  I  might 


NOVEMBER  TERM,  1860.  489 


Black  v.  Shreve. 


have  as  to  the  competency  of  parol  proof  in  case  of  an  ordi- 
nary bond,  I  have  none  under  the  peculiar  language  of  this 
one;  and  for  this  reason,  that  the  verbal  agreement,  which 
the  defendants  set  up  as  existing  eo  instanti'with  their  respect- 
ively signing  it,  is  in  the  very  teeth  of  the  written  agreement 
which  they  did  sign. 

The  verbal  agreement  set  up  is,  that  none  were  to  be  liable 
until  all  the  stockholders  had  signed;  and  the  bond  they  did 
sign,  by  its  express  terms,  was  to  be  binding  upon  such  of 
the  stockholders  as  saw  fit  to  sign  it.  The  agreement  between 
the  parties  might  have  been  either  that  the  bond  should  not 
be  binding  until  all  had  signed  it,  or  it  might  have  been  that 
it  should  be  binding  on  all  who  signed  it,  and  on  each  one  as 
he  signed  it.  If  nothing  had  been  said  about  it  in  the  bond 
itself,  it  might,  perhaps,  have  been  subject  to  parol  proof,  but 
if  the  parties  saw  fit  to  say,  in  the  instrument  itself,  which 
way  it  should  be,  parol  proof  is  excluded. 

Does  the  instrument  show,  upon  its  face,  that  the  agree- 
ment was  that  it  should  be  binding  upon  all  who  signed  it, 
and  upon  each  one  as  he  signed  it,  and  exclude  the  idea  that 
it  was  not  to  be  binding  upon  any*until  all  the  stockholders 
signed  it? 

The  bond  commences  as  follows: 

"To  all  to  whom  these  presents  shall  come  or  may  con- 
cern :  We,  John'  Black,  Joseph  Smith,  James  Shreve,  Clay- 
ton Atkinson,  Chalkley  Atkinson,  Jonathan  Smith,  Timothy 
Field,  Thomas  Haines,  Jonathan  Scattergood,  Richard  Jones, 
Philip  R.  Dakin,  Thomas  Black,  Jacob  Ridgway,  Restore  S. 
Lamb,  James  Newbold,  Benjamin  Jones,  John  B.  Bispham,. 
John  Chambers,  Joseph  Brown,  Nathan  Atkinson,  A.  B.. 
Wood,  stockholders  in  the  Delaware  and  Atlantic  Railroad! 
Company,  send  greeting."  These  are  twenty-one  out  of  the 
thirty-seven  stockholders. 

It  is  singular  that  if  the  understanding  was  that  all  the 
stockholders  were  going  to  sign,  or  the  bond  be  binding 
on  none,  it  should  simply  have  said — We,  John  Black, 


490       COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreye. 

&c.,  stockholders.  la  so  large  a  transaction,  with  so  many 
parties,  with  so  singular  and  special  an  agreement,  would  not 
the  language  have  been  "  all "  the  stockholders,  or  at  least 
"the  "stockholders? 

But,  again,  if  the  intention  had  been  as  the  defendants 
contend,  would  not  the  names  of  all  the  stockholders  have 
been  inserted  ?  Again,  how  does  it  happen  that  these  names 
in  the  body  of  the  bond  are  the  precise  names  of  those  who 
have  signed  it?  If  the  design  had  been  that  it  was  to  be 
binding  on  all  or  none,  we  should  have  expected  to  find  in 
the  body  of  the  bond  the  names  of  other  stockholders,  as 
likely  as  those  who  did  sign  it.  But  if  the  design  had  beeu 
that  it  should  be  binding  on  those  who  did  sign  it,  then  all 
this  is  the  natural  result — then  this  preamble  would  not  have 
said  "all  "or  "the  stockholders,"  but  simply  stockholders, 
and  the  name  of  each  one,  and  no  other,  would  have  been 
put  in  this  preamble  as  he  signed  it. 

The  bond  then  goes  on  further  to  state,  that  "  whereas  the 
Delaware  and  Atlantic  Railroad  Company  borrowed  of  John 
Black,  Joseph  Smith,  and  Benjamin  Jones,  who  are  also 
stockholders  in  the  said  company,  the  sum  of  $30,000,  to 
be  applied  toward  the  completion  of  the  said  road,  and  to 
secure  the  payment  thereof,  the  said  board  have  given  their 
bond  and  mortgage  to  the  said  Black,  Smith,  and  Jones; 
and  whereas  we  whose  names  are  hereunto  subscribed  and 
seals  affixed,  have  agreed  with  the  said  John  Black,  Joseph 
Smith,  and  Benjamin  Jones,  that  in  case  the  corporate 
property  so  mortgaged  should  fail  to  pay  the  said  $35.000 
and  interest,  so  that  a  loss  or  deficiency  should  happen,  that 
in  that  event,  each  of  us,  and  each  of  them,  the  said  Black, 
Smith,  and  Jones,  shall  sustain  an  equal  portion  of  such 
loss." 

Each  person,  when  he  came  to  sign,  is  presumed  to 
have  read  the  instrument.  There  is  no  allegation  that 
he  did  not,  or  that  any  fraud  or  misrepresentation  was 
practised  upon  him.  If  he  did,  wliat  did  lie  read  ?  Not 


NOVEMBER  TERM,  1860.  491 


Black  v.  Shreve. 


that  "the"  or  "all"  the  stockholders  had  agreed  to  in- 
demnify, but  that  we,  whose  names  are  hereunto  sub- 
scribed and  seals  affixed,  have  agreed  so  to  indemnify. 
By  the  very  terms  of  their  agreement,  each  one  made  his 
own  signature  and  seal  the  evidence,  and  the  only  evi- 
dence, who  was  to  be  bound  by  the  instrument.  They 
said,  in  express  terms,  that  not  all  the  stockholders,  but  those 
who  signed  and  sealed  should  indemnify.  In  connection  with 
the  preamble,  it  says,  we  stockholders  who  sign  and  seal  have 
agreed  to  indemnify.  Again,  in  the  latter  part  of  the  clause 
we  last  cited,  it  is  said,  "  in  case  of  loss,  each  of  us  shall  bear 
an  equal  portion."  Who  are  "us?"  Clearly  those  who 
sign  and  seal. 

This  bond  then  goes  on  further  to  say,  "  and  in  the 
event  that  any  of  the  said  parties,  that  is,  of  us  who  have 
signed  these  presents,  shall  become  insolvent,  that  in  such 
case  such  of  us  as  remain  solvent  shall  bear  such  loss 
equally  with  the  said  Black,  Smith  and  Jones."  Here  is 
a  distinct  definition  in  the  instrument  itself  who  are  to  l»e 
the  parties  to  the  instrument — not  the  railroad — not  the 
stock  holders  generally — but  we  who  have  signed  these 
presents.  Can  we  imagine  that  this  language  could  have 
been  inserted  for  any  other  reason  than  to  preclude  the 
possibility  of  such  a  defence  as  the  defendants  now  set 
up?  And  again,  "such  of  us  as  remain  solvent  will  pay 
our  proportion  of  the  loss."  Who  are  "  us?  "  It  is  tanta- 
mount to  saying  again,  "  we  whose  names  are  subscribed" 
will  pay. 

This  instrument  then  goes  on  further  to  state:  "Now 
know  all  men  by  these  presents,  that  in  order  to  confirm 
the  said  agreement,  and  to  give  it  legal  operation  and 
effect,  tee  whose  names  are  hereunto  subscribed  and  seals  af- 
fixed, do  hereby  covenant,  promise,  grant  and  agree  to 
and  with  the  said  Black,  Smith  and  Jones,  that  in  case 
of  loss,  we  will  pay  such  sum  of  money  as  will  divide 
said  loss  equally  between  such  of  us  as  remain  solvent 
and  the  said  Black,  Smith  and  Jones,  that  is  to  say,  each 


492       COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

cf  said  several  individuals  to  bear  an  equal  part  of  said 
loss."  Confirm  what  agreement?  Is  it  not  the  agree- 
ment that  those  who  sign  and  seal  the  instrument  had 
agreed  to  pay  their  portion  of  the  loss  ?  Again,  who  cove- 
nant and  agreed  to  pay  their  portion  of  the  loss?  Is  it 
not,  by  the  very  terms,  we  whose  names  are  hereto  sub- 
scribed and  seals  affixed  ?  Again,  "  each  of  said  several 
individuals  to  bear  an  equal  part  of  said  loss."  Who  are 
"said  several  individuals?"  They  certainly  are  not  all 
the  stockholders,  but  only  those  of  them  who  sign  and 
seal.  It  js  perfectly  manifest  that  the  words,  we  whose 
names  are  hereto  subscribed  and  seals  affixed,  so  unusual, 
so  often  repeated,  were  inserted  for  the  very  purpose  of 
excluding  the  idea  that  all  were  to  sign  before  any  became 
responsible,  and  for  the  very  purpose  of  binding  all  who 
signed,  and  each  one  as  he  did  sign,  and  to  make  the 
signing  of  each  one  the  test  of  his  liability  in  common 
with  all  who  should  sign.  These  words  were  used  for  the 
express  purpose  of  contradistinguishing  those  of  the  stock- 
holders who  did  sign  from  those  who  should  not.  And  I 
do  not  see  how  that  object  could  have  been  expressed  in 
more  explicit  and  emphatic  terms.  The  language  of  the 
instrument  is  equivalent  to  saying,  such  of  us  stockhold- 
ers as  sign  this  instrument  agree  to  pay.  The  language 
is  not,  we  stockholders  agree  to  pay,  or  "  we  all  three 
the  stockholders"  agree  to  pay;  but  the  language  is,  we 
whose  names  are  hereto  subscribed  agree  to  pay,  and  such 
of  us  who  have  signed  and  remained  solvent  agree  to  pay, 
and  each  individual  who  has  signed  will  bear  his  proportion 
of  the  loss. 

It  may  be  said,  perhaps,  that  there  might  nevertheless 
have  been  a  parol  agreement  that  those  who  did  sign 
should  not  pay  unless  all  should  sign ;  but  such  parol 
contract  would  be  in  direct  contradiction  to  the  written 
instrument.  A  parol  agreement,  that  the  instrument  is 
not  to  be  binding  until  all  the  stockholders  sign,  cannot 
co-exist  with  an  agreement  in  the  words,  we  whose  names 


NOVEMBER   TERM,  1860.  493 


Black  v.  Shreve. 


are  hereto  subscribed  agree  to  pay,  because,  by  this  last  lan- 
guage, they  agree  to  pay  if  they  sign.  By  the  express  terras 
of  the  instrument,  they  make  tlieir  liability  to  pay  depend 
upon  their  signing. 

I  am  of  opinion  that  the  defendants,  by  the  very  terms 
of  their  written  contract,  have  precluded  themselves  from 
proving  by  parol  that  they  were  not  to  be  bound  unless 
all  the  stockholders  signed.  But  suppose  said  evidence 
was  legal,  the  next  inquiry  is,  have  the  defendants  proved 
that  when  they  signed  it  was  agreed  that  none  were  to  be 
liable  unless  all  the  stockholders  signed  ?  This  would  depend 
upon  the  proof. 

NOTE. — Judge  Vredenburgh  then  considers  at  great  length 
the  weight  of  the  evidence  upon  this  question,  which,  at  his 
request,  is  omitted. 

VAN  DYKE,  J.  This  is  a  proceeding,  instituted  by  the 
complainants  in  the  Court  of  Chancery,  to  compel  a  con- 
tribution on  the  part  of  the  defendants,  based  on  a  special 
agreement  signed  by  all  the  parties,  in  which  it  is  alleged 
the  defendants  bound  themselves  to  indemnify  the  com- 
plainants against  loss,  which  loss  it  is  said  has  occurred. 
It  seems  to  be  admitted  that  the  Court  of  Chancery  is  the 
proper  tribunal  in  which  to  seek  relief,  if  the  complain- 
ants are  entitled  to  it  anywhere.  The  signing  and  seal- 
ing of  the  agreement  is  admitted  by  the  defendants;  but 
they  set  up  and  insist  that  the  execution  of  the  paper  was 
a  conditional  execution,  which  condition  was  never  per- 
formed or  complied  with,  and  that  the  instrument  was 
never  in  fact  delivered  to  the  complainants  by  the  defend- 
ants, or  with  their  consent,  as  a  binding  agreement  between 
them. 

The  bill  of  complaint  was  amended,  and  so  was  the 
answer;  and,  although  there  were  several  grave  questions 
started  in  the  pleadings,  they  were  not  pursued  either  in 
the  evidence  or  in  the  arguments  of  counsel,  and  the 

VOL.  II.  2  n 


494      COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

entire  controversy  is  narrowed  down  to  the  simple  ques- 
tions whether  the  agreement  was  in  fact  executed  abso- 
lutely or  conditionally,  and  whether  the  said  agreement 
was  in  fact  ever  lawfully  delivered  by  the  defendants,  or 
with  their  consent,  to  the  complainants  or  either  of  them. 
After  the  evidence  was  closed,  and  the  matters  argued 
before  the  Chancellor,  he  was  so  much  in  doubt  as  to 
where  the  truth  and  justice  of  the  case  lay,  that  he  or- 
dered a  feigned  issue  to  be  made  between  the  parties,  and 
the  disputed  facts  before  mentioned  to  be  submitted  to  a 
jury  before  the  Circuit  Court  of  the  county  of  Burlington. 
The  trial  was  had,  and  the  jury  found  the  issues  thus 
made  in  favor  of  the  defendants.  The  Chancellor,  al- 
though applied  to  for  that  purpose,  refused  to  set  the  ver- 
dict aside,  or  to  grant  a  new  trial  or  a  re-hearing  of  the 
case,  but  made  his  decree  in  favor  of  the  defendants,  in 
conformity  with  the  finding  of  the  jury.  From  this  de- 
cree an  appeal  has  been  taken,  and  the  matters  are  now 
before  this  court  for  consideration  and  review.  If  the 
case  had  been  heard  and  decided  by  the  Chancellor  on 
the  pleadings  and  proofs  before  him  in  the  ordinary  way, 
without  the  intervention  of  a  jury,  and  if  it  were  now  be- 
fore us  for  review  in  the  same  condition,  I  should  feel  less 
embarrassment  as  to  my  duty  in  regard  to  it.  That  grave 
errors  occurred  before  the  jury,  and,  in  .connection  with 
the  reference  to  them,  such  as  this  court  should  not  sanc- 
tion, and  such  as  a  court  of  law  should  set  a  verdict 
aside  upon,  I  do  not  doubt.  But  whether  this  court  may 
properly  disregard  these  errors,  and  treat  the  verdict  of 
the  jury,  and  all  the  matters  connected  therewith,  as  a  mere 
nullity,  as  though  they  had  never  occurred,  and  proceed 
to  affirm,  reverse,  or  alter  the  decree  of  the  Chancellor  as 
Ave  may  think  just  and  equitably,  without  any  regard  to 
the  verdict  of  the  jury,  when  we  are  satisfied  that  such 
errors  have  occurred,  is  an  important  question,  lying  at 
the  threshold  of  this  inquiry,  and  one  which  should  receive 
the  careful  answer  of  this  court.  If  we  are  bound  to  ex- 


NOVEMBER  TERM,  18GO.  495 

Black  v.  Shreve. 

amiiie  the  verdict  of  the  jury,  and  the  proceedings  on 
which  it  is  based,  and  if  found  to  be  clearly  wrong,  to  re- 
vise the  decree  founded  upon  them  for  that  reason,  then  we 
need  not  trouble  ourselves  with  the  merits  of  the  case;  but 
if,  on  the  other  hand,  we  may  and  ought  to  disregard  the  ver- 
dict of  the  jury,  and  all  the  proceedings  on  which  it  is  based, 
however  erroneous,  absurd  or  monstrous  they  may  have  been, 
then  we  may  properly  dismiss  from  consideration  all  that 
part  of  the  inquiry,  and  pass  at  once  to  what  we  may  con- 
sider the  merits  of  the  case  upon  the  pleading  and  evidence 
as  they  are  before  us. 

The  difficulty  of  solving  the  important  questions  of 
fact  were  so  great  in  the  Chancellor's  mind  that  he  sought 
the  aid  of  a  court  and  jury  in  the  premises.  He  obtained 
that  aid.  He  received  the  verdict  of  the  jury  with  the 
rulings  and  decisions  of  the  court  upon  the  trial.  He 
adopted  that  verdict  and  these  rulings  as  lawful  and 
right,  and  based  his  decree  upon  them.  Although  the 
case  was  three  times  elaborately  argued  before  him,  the 
only  opinion  which  he  delivered  confines  itself  to  a  justi- 
fication of  his  reference  of  the  case  to  a  jury,  and  to  a  jus- 
tification of  the  trial  with  all  its  incidents,  vindicating  at 
length  his  reference  of  the  case  and  the  issue  found,  as 
well  as  the  decision  of  the  court  and  the  finding  of  the 
jury  from  all  the  complaints  made  against  them,  but 
enters  into  no  argument  whatever,  or  reference  to  the 
pleading  or  proofs,  to  sustain  the  decree  which  he  made 
independently  of  the  verdict  of  the  jury.  I  do  not  object 
to  these  things,  but  refer  to  them  to  show  that  the  Chancel- 
lor's decree  was  based  greatly,  if  not  wholly,  on  the  trial  and 
verdict.  If,  then,  we  find  the  decree  of  dismissal  in  this  case, 
which  we  are  asked  to  affirm,  resting  almost,  if  not  quite, 
exclusively  on  the  trial  and  verdict,  and  if  we  find  the  pro- 
ceedings which  included  this  trial  and  verdict  filled  with 
grave  and  serious  errors,  how  can  we  affirm  that  decree  with 
these  errors  patent  upon  the  proceedings,  without  seeming  to 
affirm  these  errors? 


496       COURT  OF  ERRORS  AND  APPEALS. 

Black  T.  Shreve. 

I  do  not  deny  the  right  of  the  Chancellor  to  make  up  a 
feigned  issue,  and  seek  the  aid  of  a  jury  in  his  efforts  to 
solve  it,  nor  do  I  think  that  he  has  exercised  that  right 
improperly  in  this  case.  I  admit  his  right  to  determine 
the  principles  ou  which  the  trial  is  to  be  conducted,  the 
evidence  to  be  used,  the  rules  of  law  or  equity  to  be 
applied,  and  that  he  may  adopt  or  wholly  reject  the  verdict 
when  rendered ;  but  if  in  doing  this  he  commits  any  grave 
and  serious  errors,  or  if  the  court  or  jury,  either  by  or 
without  such  directions,  commit  any  such  errors,  which 
clearly  affect  the  rights  and  as  clearly  destroy  the  inter- 
ests of  a  party ;  and  if  the  Chancellor,  either  before  or 
after  the  verdict,  makes  or  adopts  these  errors  as  his  own, 
and  bases  his  final  decree  upon  them,  without  any  repu- 
diation of  them  whatever,  it  is  certainly,  I  think,  not 
only  our  right,  but  our  duty,  on  appeal  to  us,  to  correct 
such  errors,  if  injustice  has  been  done  thereby;  nor  is  the 
large  discretionary  power  of  the  Chancellor  any  answer 
to  this  proposition.  His  discretion  is  considered  to  be 
large ;  but  in  the  exercise  of  his  discretion,  however 
great,  he  has  no  legal  right  whatever  to  do  wrong ;  nor 
can  I  admit  that  he  tan  commit  any  error  in  the  exercise 
of  his  discretion  or  otherwise,  which  this  court  has  not 
the  power  to  correct.  Courts  of  law,  it  is  said,  have  the 
discretion  to  make  blunders  and  commit  mistakes  which 
cannot  be  corrected  on  a  writ  of  error;  but  even  the  dis- 
cretion of  law  courts  cannot  shield  their  errors  from  re- 
view on  a  motion  for  a  new  trial  when  the  whole  case  is 
open  for  examination.  .  So  here  we  have  the  whole  case 
under  review — all  the  pleadings,  all  the  evidence,  all  the 
orders  and  decisions,  verdict  and  final  decree — and  if  in 
any  one  of  them,  or  in  any  part  of  them,  we  can  find  an 
error  that  has  wrought  injustice  or  deprived  the  party  of 
a  clear  and  undoubted  right,  which  results  in  his  injury, 
it  is  not  only  our  right  but  our  imperative  duty  to  make  the 
correction. 

As  before  remarked,  the  Chancellor,  in  his  final  decree, 


NOVEMBER  TERM,  1860.  497 

Black  v.  Shreve. 

the  reasons  for  which  are  to  be  found  in  his  written  opin- 
ion, puts  it,  as  I  understand  it,  entirely  on  the  verdict  of 
the  jury,  which  verdict,  and  the  proceedings  on  which  it 
was  based,  he  defends  and  justifies  in  all  their  length  and 
breadth,  and  places  it  on  no  other  grounds.  And  yet  that 
verdict  and  these  pleadings  are,  in  my  opinion,  so  erro- 
neous that  I  could  not  consent  to  let  them  stand  as  the 
law  of  the  land,  even  if  it  were  possible,  in  a  legal  way,  to 
do  justice  between  the  parties  by  an  entire  disregard  of 
the  trial  and  all  its  incidents.  But  this  I  apprehend  we 
cannot  do ;  and  hence  I  feel  a  greater  necessity  of  re- 
versing this  decree  on  the  ground  of  its  being  based  on 
an  erroneous  verdict,  to  the  end  that  that  verdict  may  be 
set  aside  and  a  new  trial  had  upon  correct  principles,  or 
the  cause  heard  in  some  other  way,  according  to  the  well 
known  principles  of  equity  proceedings. 

The  Chancellor  ordered  the  pleadings  in  this  case  to 
be  read  in  evidence  by  either  party  before  the  jury,  and 
this  is  complained  of  because  the  order,  in  this  respect, 
was  without  discrimination  or  qualification.  I  do  not 
think  the  order  of  itself  is  objectionable,  and  if  it  had 
been  properly  carried  out  at  the  trial,*  I  should  not  feel  at 
liberty  to  disturb  the  verdict  on  account  of  the  form  of  the 
order ;  but  these  pleadings  were  so  treated  and  used  at 
the  trial  as  to  do  great  injustice  to  the  complainants.  We 
cannot  suppose  that  the  jury  had  any  knowledge  or  cor- 
rect notion  of  the  force  and  effect  of  either  a  bill  or  an 
answer.  The  bill  was  not  sworn  to  by  any  one,  while  the 
answer  seemed  to  be  proved  by  some  half  a  dozen  per- 
sons. The  result  of  this  state  of  things  would  naturally 
be,  if  not  explained,  that  the  jury  would  give  full  credit 
to  the  answer,  and  none  whatever  to  the  bill.  And  in 
point  of  fact,  although  the  bill  was  read  to  the  jury,  the 
judge  wholly  failed  to  instruct  them  that  it  contained 
anything  whatever  to  which  they  might  or  should  give 
any  heed,  while  he  did  in  fact  instruct  them  that  the 
answer  was  to  be  received  and  treated  as  evidence, 


498       COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

whether  it  was  responsive  to  the  bill  or  not.  This  was  a 
most  serious  error,  for,  under  such  a  charge,  the  jury 
would  have  been  fully  justified,  if  not  required  to  find 
the  verdict  as  they  did,  without  looking  at  any  other  evi- 
dence, and,  perhaps,  in  defiance  of  it.  Now  we  all  know 
that  a  bill  is  just  as  much  evidence,  and  quite  as  potent 
in  a  case  as  the  answer.  All  the  material  matters  in  the 
bill  that  are  not  denied  in  the  answer,  if  there  be  one, 
are  to  be  taken  as  true,  while  nothing  in  the  answer  which 
is  denied  by  a  replication  is  to  be  taken  as  true,  except 
what  is  really  in  answer  to  some  statement  or  charge  in 
the  bill.  Yet  of  this  rule,  so  necessary  and  so  absolute 
in  chancery  proceedings,  the  jury  were  not  only  left  in 
profound  ignorance  of,  but,  so  far  as  they  were  instructed 
at  all,  they  were  charged  to  give  full  force  to  the  answer 
in  all  its  parts,  while  they  were  left  at  full  liberty  to  treat 
the  bill  as  of  no  force  at  all.  The  judge  was  doubtless 
aware  of  the  rule  referred  to,  but,  through  inadvertence, 
did  not  give  it  to  the  jury  in  such  way  as  to  enable  them 
to  make  a  proper  use  of  it;  but,  on  the  contrary,  the 
charge  was  such  as  to  enable,  if  not  to  require  the  jury 
to  use  the  pleadings  in  a  manner  clearly  opposite  to  that 
which  the  law  requires.  This  is  an  error  well  calculated 
to  do  mischief,  and  one  which  this  court  ought  not  .to 
affirm. 

The  complainants  object  to  the  verdict  on  the  ground 
of  the  rejection  of  competent  evidence  at  the  trial.  They 
offered  as  a  witness,  John  Black,  who  is  himself  one  of 
the  complainants  in  the  suit.  He  was  objected  to  on  the 
ground  that  he  was  not  a  competent  witness,  and  the  ob- 
jection was  sustained.  If  John  Black  was  a  competent 
witness,  then  the  rejection  of  his  evidence  was  not  only  a 
grave  error,  but  is  one  which  we  cannot  possibly  correct 
but  by  reversing  this  decree.  If  his  evidence  is  compe- 
tent, we  are  bound  to  consider  it  as  material  and  import- 
ant. He  might  have  proved,  for  aught  we  know,  that  all 
the  parties  who  signed  the  agreement,  in  a  body,  agreed 


NOVEMBER  TERM,  1860.  499 


Black  v.  Shreve. 


to  waive  the  necessity  of  having  the  names  of  all  the 
stockholders  to  the  paper,  and  agreed  to  make  it  absolute 
in  its  then  condition,  and  that  in  fact  they,  in  their  proper 
persons,  delivered  it  without  condition  to  the  complain- 
ants. But,  however  important  his  testimony  might  have 
been,  it  was  not  before  the  jury  nor  before  the  Chancellor, 
nor  is  it  before  us,  nor  can  we  take  any  notice  of  it ;  and  if 
we  affirm  this  decree  in  its  present  condition,  we  must  for- 
ever deprive  the  complainants  of  the  benefit  of  this  evidence. 
The  only  way  in  which  the  wrong,  if  it  be  one,  can  be  cor- 
rected is,  by  reversing  the  decree  setting  aside  the  verdict  of 
the  jury,  and  opening  the  case  anew  to  such  evidence  as  may 
be  competent. 

If  the  evidence  of  John  Black  was  properly  rejected,  it 
must  have  been  because  it  was  incompetent ;  and  if  it  was 
incompetent  at  the  time  it  was  offered,  it  might  have  been 
because  it  was  offered  in  an  action,  a  proceeding  not  of 
an  equitable  nature.  It  could  not  have  been  rejected  on 
the  ground  that  Uiere  was  nothing  in  the  defendants' 
answer  to  disprove  that  was  responsive  to  the  bill.  The 
defendants  will  hardly  insist  on  this,  nor  could  it  have 
been  rejected  for  the  reason  that  the  evidence  between 
the  parties  had  been  closed  ;  for  the  reference  of  the  case  to 
the  jury  completely  re-opened  the  controversy  to  the  intro- 
duction of  all  legal  testimony,  without  regard  to  the  question 
whether  the  witness  had  or  might  have  been  examined  before 
the  master  or  not  j  and  this  applied  as  well  to  the  parties 
themselves  as  to  any  others,  if  their  evidence  was  competent 
in  itself. 

Whether,  then,  the  testimony  of  John  Black  was  prop- 
erly or  improperly  rejected,  depends  upon  the  question 
whether  the  action  or  proceeding  in  which  it  was  offered 
was  one  of  an  equitable  nature.  I  am  forced  to  look 
upon  it  in  this  light,  and  cannot  see  it  in  any  other.  The 
suit  is  in  the  Court  of  Chancery,  and  is  of  an  equitable 
nature.  The  proceedings,  up  to  the  time  of  the  reference, 
were  all  of  an  equitable  nature,  and  all  those  proceedings 


500      COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

were  transferred,  by  the  Chancellor's  order,  to  the  Circuit 
Court  and  jury,  to  be  proceeded  in  by  them  under  his 
express  directions.  This  reference  to  a  court  of  law  and 
a  jury  was  not  at  the  request  of  either  party,  but  at  the 
instance  of  the  Chancellor  himself,  who  sought  the  aid, 
not  so  much  of  a  court  of  law  on  important  legal  ques- 
tions, as  the  aid  of  a  jury  in  the  solution  of  important  and 
perplexing  facts.  If  he  had  needed  the  aid  of  the  law 
judges,  he  could  have  obtained  it  without  the  intervention 
of  a  jury  ;  and  when  he  received  it,  if  he  adopted  it,  it 
would  have  been  the  opinion  of  the  Chancellor,  and  not 
of  the  Supreme  Court ;  but  the  aid  of  a  jury  he  could  not 
obtain  except  through  the  intervention  of  a  court,  but 
neither  the  court  nor  the  jury  come  to  any  final  conclu- 
sion in  the  matter,  but  the  court  simply  reports  back  to 
the  Chancellor  the  proceedings  which  have  been  had  be- 
fore him,  the  same  substantially  as  if  the  reference  had 
been  to  a  master,  and  the  proceedings  in  the  one  case,  as 
well  as  in  the  other,  when  report  thereof  is  made  to  the 
Chancellor,  may  either  be  regarded  or  disregarded  by 
him,  as  he  thinks  fit ;  because  the  proceedings  are  his 
own,  substantially  in  his  own  court,  and  under  his  entire 
control ;  the  only  thing  that  is  peculiar  about  it  being 
that,  as  he  has  no  power  to  bring  a  jury  into  his  own 
court,  he  is  forced,  when  he  needs  their  aid,  to  seek  it 
through  the  only  channel  in  which  their  verdict  can  be 
obtained;  but  still  the  proceeding  is  wholly  his  own,  and 
although  the  issue  is  said  to  be  formed  in  the  Supreme 
Court,  yet,  in  point  of  fact,  that  court  has  nothing  at  all 
to  do.  with  the  matter.  The  form  of  certifying  papers 
may  be  gone  through  with,  but  there  is  no  postea  returned 
to  that  court  for  its  action;  for  there  is  no  action  that  it 
can  possibly  take,  t  nor  is  there  any  notice  which  it  can 
take  of  the  proceedings  had  in  the  Circuit.  The  postea  is 
returned  to  the  Court  of  Chancery,  where  the  action 
properly  belongs,  and  where  it  must  finally  be  disposed 
of,  and  the  worst  that  can  be  said  of  the  proceeding  out- 


NOVEMBER  TERM,  1860.  601 

Black  v.  Shreve. 

side  of  the  Court  of  Chancery  proper  is,  the  Chancellor 
stepping  aside,  as  it  were,  to  seek  advice  in  the  solution  of  a 
doubt,  which  advice,  when  obtained,  he  is  in  no  way  bound 
by,  but  is  wholly  at  liberty  to  accept  or  reject  it  at  pleasure; 
the  proceeding  all  the  while  being  a  chancery  proceeding 
well  known  to  that  court,  and  must  be  of  necessity  of  an 
equitable  nature. 

It  is  said  that  this  proceeding  before  the  Circuit  Court 
is  a  proceeding  at  law,  because  there  is  a  technical  legal 
issue  framed  between  the  parties.  It  is  true  there  is  the 
form  of  an  issue,  but  it  is  such  a  form  as  was  never  found 
in  a  court  of  law  when  made  up  by  the  parties.  This 
issue  is  termed  a  feigned  issue,  that  is  an  unreal  one,  and 
although  it  may  not  be  dignified  with  the  title  of  a  pious 
fraud,  it  may  very  well  be  termed  an  equitable  humbug. 
It  was  never  framed  by  the  parties,  nor  with  their  con- 
sent, but  was  imposed  upon  them  by  the  Chancellor,  not 
improperly,  I  think,  for  the  pure  purpose  of  aiding  him 
in  reaching  a  just  and  proper  conclusion.  All  the  issue 
which  the  parties  ever  made  was  by  their  pleadings  in 
the  Court  of  Chancery.  This  was  an  issue  in  a  proceed- 
ing of  an  equitable  nature.  From  this  issue  they  have 
never  voluntarily  departed,  nor  asked  leave  to  depart. 
And  it  is  the  same  that  was  transferred,  by  a  kind  of  legal 
jargon,  to  the  Circuit  Court.  The  suit  was  commenced  in 
the  Court  of  Chancery ;  it  was  never  out  of  that  court, 
and  it  would  seem  absurd  to  suppose  it  could  have  been 
in  two  different  courts  at  the  same  time.  The  reference 
of  the  matter  to  the  jury,  through  the  only  form  in  which 
he  could  procure  their  aid,  no  more  removed  the  cause 
from  the  Court  of  Chancery  than  if  it  had  been  referred 
to  commissioners,  or  even  to  a  master,  to  ascertain  some 
particular  fact.  The  one  course  is  just  as  much  a  pro- 
ceeding in  chancery  and  as  well  known  to  its  practice  as  the 
other. 

The  conclusion,  then,  to  which  I  find  myself  forced  is, 
that  the  proceeding  before  the  Circuit  Court  was  one  of 


502   COURT  OF  ERRORS  AND  APPEALS. 

Black  v.  Shreve. 

an  equitable  nature,  caused  and  created  by  an  order  of 
the  Chancellor,  which  he  had  a  perfect  right  to  make. 
That  this  order  opened  anew  the  investigation  to  all  evi- 
dence that  could  have  been  legal  at  any  stage  of  the 
cause ;  that  the  evidence  of  John  Black  was  legal  evidence 
at  the  time  it  was  offered  for  the  purposes  contemplated  by 
the  statute;  that  the  rejection  of  it  was  wrong,  and  assuming 
it  to  be  material  and  important,  did  great  injury  to  the  com- 
plainants; and  that  that  wrong  can  only  be  remedied  by  a 
reversal  of  this  decree:  for  if  we  proceed  to  settle  the  case 
now  upon  its  supposed  merits,  we  will  be  bound  to  do  so 
without  this  evidence. 

It  is  said  that  this  evidence  of  John  Black  might  have 
been  taken  before  the  master  previous  to  the  closing  of 
the  testimony,  but  this  does  not  go  appear.  The  law 
which  made  this  evidence  legal  went  into  operation  on 
the  4th  of  July,  1855.  The  replication  was  filed  in  Sep- 
tember, 1854.  There  appears  to  have  been  a  rule  to  close 
testimony,  but  when  it  expired  does  not  appear.  But  all 
the  evidence  was  taken  prior  to  the  13th  of  March,  1855, 
except  two  unimportant  witnesses,  who  were  examined 
more  than  a  year  afterwards,  and  after  the  cause  seems  to 
have  been  argued  before  the  Chancellor ;  and  then  the 
evidence  was  objected  to  on  the  ground  that  the  rule  to  close 
testimony  had  expired.  But  the  right  to  the  evidence  does 
not  depend  on  the  question ;  but  any  witness  who  was  com- 
petent in  the  cause,  at  any  stage  of  it,  was  competent  before 
the  jury. 

I  think,  therefore,  that  this  decree  should  be  reversed,  the 
verdict  of  the  jury  set  aside  and  a  new  trial  ordered,  if  denied 
by  the  Chancellor,  and  the  case  opened  to  the  reception  of 
legal  evidence  until  legally  closed,  and  that  the  Chancellor 
make  such  new  decree  in  the  case  as  to  him  shall  seem  just 
and  equitable. 

I  have  not  gone  into  an  examination  of  the  merits  of 
the  case;  I  do  not  think  we  are  in  a  condition  to  do  so; 
they  are  not  fully  before  us.  A  proceeding  has  taken 


NOVEMBER  TERM,  1860.  603 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

place  in  which  the  complainants  have  been,  as  I  think,  greatly 
wronged.  The  decree  adopts  those  wrongs,  and  to  have  them 
corrected,  I  think  that  decree  should  be  reversed,  not  on  the 
merits  of  the  case,  but  that  the  merits  may  be  better  and 
more  fully  examined  into,  and  the  parties  more  fully  and 
more  fairly  heard,  to  the  end  that  exact  and  equal  justice  in 
a  case  of  so  much  importance  may,  if  possible,  be  done. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote: 

For  affirmance  —  Judges  COMBS,  HAINES,  RISLEY, 
WHELPLEY,  CORNELISON,  OGDEN,  SWAIN,  WOOD. 

For  reversal — VREDENBURGH,  VAN  DYKE,  KENNEDY. 

CITED  in  Titus  v.  Phillips,  3  C.  E.  Or.  541 ;  Carlisle  v.  Cooper,  6  C. 
E.  Gr.  590 ;  Newark  &  JV.  Y.  R.  R.  Co.  v.  Mayor,  &c.,  of  Newark,  8 
C.  E.  Gr.  517. 


Between  THE  PROPRIETORS  OF  THE  BRIDGES  OVER  THE 
RIVERS  PASSAIC  AND  'HACKENSACK,  appellants,  and 
THE  HOBOKEN  LAND  AND  IMPROVEMENT  COMPANY, 
respondents. 

1.  The  legislature,  in  1790,  incorporated  the  complainants,  and  gave 
them  the  power  to  build  a  bridge  over  the  Hackensack  river,  to  take  tolls 
for  man  and  beast  passing  over  it,  and  by  the  same  law  enacted  that  it 
should  not  be  lawful  for  any  person  whatever  to  erect  any  other  bridge 
over  said  river  for  an  hundred  years. 

2.  In  1860  the  legislature  gave  to  the  defendants  power  to  build  a  rail- 
way from  Hoboken  to  Newark,  with  the  necessary  viaduct  over  the  said 
river  Hackensack. 

3.  Under  this  last  act,  the  defendants  commenced  to  build  a  viaduct 
over  the  said  river,  described  in  their  answer  to  the  bill  of  complaint 
thus:  "  A  structure,  so  as  to  lay  iron  rails  thereon,  upon  which  engines 
and  cars  may  be  moved  and  propelled  by  steam,  not  to  be  connected  with 
the  shore  on  either  side  of  said  river,  except  by  a  piece  of  timber  under 
each  rail,  and  in  such  a  manner,  as  near  as  may  be,  so  as  to  make  it  im- 
possible for  man  or  beast  to  cross  paid  river  upon  said  structure,  except  in 
the  cars  of  the  defendants  ;  that  the  only  roadway  between  said  shores  and 


504      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

eaid  structure  will  be  two  or  more  iron  rails,  two  and  a  quarter  inches 
wide,  four  and  a  half  inches  high,  laid  and  fastened  upon  said  timber  four 
feet  ten  inches  asunder."  Held — 

4.  First.  That  the  said  proposed  structure  was  no  bridge  within  the 
meaning  of  the  complainants'  charter. 

5.  Second.  That  no  structure  across  the  river  Hackensack,  which  had 
not  a  footway  for  man  and  beast  to  walk  over  on,  was  a  bridge  within  the 
meaning  of  the  complainants'  charter. 

6.  Third.  That  the  term  bridge,  as  known 'to  the  common  law,  was  a 
Btructure  over  a  river  having  a  foot-path  for  man  and  beast ;  and  cases 
upon  this  subject  reviewed. 

7.  Fourth.  By  the  complainants'  charter,  they  may  collect  tolls  from 
men  walking  over  their  bridge,  and  for  animals  walking  over  their  bridge, 
drawing  their  burthens ;  by  the  defendants'  charter,  they  cannot  collect 
tolls  for  such  use  of  their  structure — held,  that  the  franchises  given  the  de- 
fendants are  not  the  same  franchises  as  those  given  to  the  complainants, 
and  therefore  do  not  interfere  with  them. 

8.  Fifth.  The  first,  fifth,  and  sixth  sections  of  the  defendants'  charter 
commented  on  and  construed. 

Zabriskie  and  Attorney -General,  for  appellants. 
Gilchrist  and  Bradley,  for  respondents. 

VREDENBURGH,  J.  The  appellants  and  complainants 
below  filed  their  bill  against  the  defendants,  alleging  that, 
in  1790,  the  legislature  gave  them  the  right  to  build  a 
bridge  over  the  Hackensack,  and  to  take  tolls  for  man 
and  other  animals  carrying  or  drawing  their  burthens 
passing  over  it,  and  by  the  same  law  enacted  that  it 
should  not  be  lawful  for  any  person  whatever  to  erect 
any  other  bridge  over  said  river;  that  they  erected  said 
bridge  soon  after,  and  have  ever  since  been  in  the  enjoy- 
ment of  the  tolls;  that,  in  1860,  the  legislature  gave  the 
defendants  power  to  build  a  railway  from  Hoboken  to 
Newark,  with  the  necessary  viaduct  over  the  said  river 
Hackensack,  and  that,  by  virtue  thereof,  the  defendants 
have  commenced,  and  intend  to  build  a  railroad  bridge 
over  said  river,  to  the  diminution  of  their  tolls,  and  with- 
out having  made  or  tendered  them  compensation.  They 
aver  that  the  defendants'  proposed  bridge  would  be  a 


NOVEMBER  TERM,  1860.  505 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

nuisance  upon  their  exclusive  grant,  and  pray  an  injunction. 
To  this  complaint  the  defendants  set  up  a  variety  of  answers. 
Without  expressing  any  opinion  upon  the  others,  I  shall  only 
consider  the  following  three,  viz. : 

First.  That  the  complainants'  charter  does  not  confer  on 
them  a  valid  exclusive  grant. 

Second.  That  the  structure  the  defendants  propose  to 
build  is  no  bridge  within,  the  meaning  of  the  complainants' 
charter. 

Thirdly.  That  if  it  is,  that  it  cannot  interfere  with  any  of 
their  franchises. 

1.  Does  the  complainants'  charter  confer  on  them  a  valid 
exclusive  grant  to  bridge  the  Hackensack? 

The  court  below  has  found  that  it  does.  But  as  I  con- 
ceive that  the  exigencies  of  the  case  do  not  demand  its  solu- 
tion, I  shall  merely  remark  that,  as  regards  this  first  question, 
I  neither  concur  in  or  dissent  from  the  opinion  of  the  Chan- 
cellor. I  shall  however  assume,  in  what  I  have  to  say,  that 
he  in  this  regard  was  right. 

2.  Is  the  structure   the   defendants   propose   to   build   a 
bridge  ? 

The  grant  of  power  to  the  complainants  is  to  build  a 
bridge — the  franchise  is  to  enjoy  the  tolls  granted.  The 
prohibition  is,  that  it  shall  not  be  lawful  for  any  person  to 
build  any  other  bridge  over  the  Hackensack.  The  defend- 
ants, in  their  answer,  deny  that  they  have  commenced  or 
intend  to  build  any  bridge  within  the  meaning  of  the  com- 
plainants' charter.  They  describe,  however,  very  specifically 
the  structure  they  do  intend  to  build.  In  order,  therefore, 
to  entitle  the  complainants  to  their  injunction,  it  must  appear, 
from  the  answer,  that  the  defendants  proposed  structure 
would  be  a  bridge. 

In  considering  this  question,  the  first  idea  which  strikes 
us  is,  at  what  time  are  we  to  affix  its  meaning  to  the  term 
bridge,  in  1790  or  in  1860?  Nothing  is  more  change- 
able than  language.  This  is  apparent  from  the  numerous 
languages  and  dialects  in  the  world.  The  English  of  to- 


506      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

day  is  a  very  different  thing  from  that  of  Chaucer,  or  of 
even  Shakspeare.  We  know,  from  our  own  observation, 
that  all  vocal  signs  are  in  a  process,  more  or  less  rapid,  of 
continual  change.  The  term  bridge  is  a  sign  for  a  thing. 
It  may  now  stand  as  the  sign  for  things  which  it  did  not 
stand  for  in  1790.  I  shall  attempt  to  show  hereafter  that 
in  this  particular  case  it  does  not ;  but  it  may  be  so,  and 
it  is  best,  at  the  start,  to  settle  at  what  time  we  are  to 
take  its  meaning,  for  we  cannot  otherwise  reason  about 
it.  If  the  structure  the  defendants  propose  to  build  had 
been  erected  in  1790,  and  would  then  have  been  called  or 
been  a  bridge,  it  is  within  the  terms  of  the  prohibition 
But  if  it  would  not  then  have  been  called  or  been  a  bridge 
it  could  not  become  so  since,  within  .the  meaning  of  the 
statute  of  1790,  by  merely  acquiring  that  name  or  be- 
cause we  since  have  discovered  a  mode  of  passing  over 
it.  A  structure  which  was  not  a  bridge  in  1790  does  not 
become  one  by  merely  discovering  a  mode  of  passing 
over  it.  All  we  can  say  in  such  cases  is,  that  since  1790, 
however,  science  haa  discovered  a  mode  of  passing  over 
rivers  on  structures  which  were  not  bridges.  Steam  fer- 
ries have  been  discovered  since  1790.  Suppose  they  had 
since,  in  common  parlance,  come  to  be  called  ferry  bridges, 
would  they  be  within  the  prohibition?  They  are  some- 
times called  so  now.  We  say  the  East  river  has  been 
bridged  by  the  ferries.  Since  the  use  of  ocean  steamers 
the  Atlantic  is  sometimes  said  to  be  bridged ;  and  we  do 
not  know  but  that  before  this  exclusive  grant  expires 
they  may  both,  in  common  parlance,  be  called  bridges. 
But  if  this  should  happen,  surely  that  could  not  bring 
them  within  this  prohibition.  So  with  respect  to  the  pro- 
posed  structure  of  the  defendants.  If  it  had  been  erected 
in  1790,  and  would  not,  in  its  essential  structure,  have 
oeen  a  bridge,  as  the  term  was  then  used,  it  could  not 
become  so  afterwards  merely  because  we  have  discovered 
a  mode  of  passing  over  it,  or  because  it  has  since  been 
called  a  railroad  bridge  or  simply  a  bridge.  To  allow  thia 


NOVEMBER  TERM,  1860.  507 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

would  be  to  extend  the  exclusive  grant  over  structures  not 
embraced  in  the  original  grant,  and  that  not  by  legislative 
power,  but  simply  by  enlarging  the  comprehensiveness  of  a 
word. 

Our  inquiry  therefore  is,  what  was  the  meaning  of  the 
terra  bridge  in  1790?  The  term  bridge  is  but  the  sign  for 
a  thing.  What  material  thing  did  it  then  stand  for  in  1790; 
was  it  the  sign  of  such  a  thing  as  the  defendants  propose  to 
build?  Of  thjs  the  only  arbiter  is  use,  "WSMS  est  arbiter  et 
norma  loquendi"  Before  1790,  was  the  term  bridge  ever 
used  to  signify  a  thing  in  its  essential  structure  like  this  pro- 
posed by  the  defendants  ? 

In  considering  this  I  shall  assume  as  correct  all  the 
suggestions  the  complainants  have  made  as  to  the  rules 
for  construing  statutes.  This  is  a  question  rather  of  pre- 
cise definition  than  of  the  construction  of  language;  as 
soon  as  we  agree  what  meaning  the  term  bridge  had  in 
1790  the  whole  question  is  settled.  I  shall  also  assent  to 
another  suggestion  of  the  complainants,  viz.,  that  their 
charter  prohibits  all  kinds  of  bridges.  If  the  proposed 
structure  of  the  defendants  had  been  erected  in  1790,  and 
would  then  have  been  within  the  meaning  of  the  term 
bridge,  it  is  within  the  prohibition.  The  complainants'  char- 
ter intended  to  forbid  bridges  of  all  kinds  whatever;  but 
then  it  embraced  nothing  but  a  bridge.  The  thing  prohib- 
ited must  be  a  bridge. 

I  shall  also  assent  to  another  suggestion  of  the  com- 
plainants, that  if  the  proposed  structure  of  the  defendants 
had  been  erected  in  1790,  and  would  in  its  essential 
structure  have  been  a  bridge,  that  it  would  have  been 
within  the  prohibition,  whether  its  peculiar  kind  was  thea 
known  and  in  the  contemplation  of  the  legislature  or  was 
discovered  afterwards.  The  legislature  intended  to  pro- 
hibit all  kinds  of  bridges  whatever,  whether  then  known 
or  not ;  as,  for  instance,  the  tubular  bridge  over  the  St. 
Lawrence,  or  the  iron  wire  bridge  over  the  Niagara,  were 


508   COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

kinds  of  bridges  unknown  in   1790,  but  they  are,  in  their 
essential  structure,  bridges,  and  within  the  prohibition. 

The  question  still  remains,  is  the  proposed  structure  of 
the  defendants  such  a  one  as,  in  1790,  would  have  been 
called  a  bridge?  In  considering  the  question,  I  shall 
invoke  the  rules  of  construction  urged  by  the  complain- 
ants upon  the  argument,  and  the  following  ones  in  par- 
ticular: "If  the  words  of  a  statute  are  in  themselves 
precise  and  unambiguous,  then  no  more  can  be  necessary 
than  to  expound  the  words  in  their  ordinary  and  natural 
sense.  The  words  themselves  alone  do,  in  such  case,  but 
declare  the  intention  of  the  law-giver."  And  again, 
"  words  are  generally  to  be  understood  in  their  usual  and 
most  known  signification."  And  again,  "  the  words  of  a 
statute  are  to  be  taken  in  their  ordinary  and  familiar  signifi- 
cation and  import,  and  regard  is  to  be  had  to  their  general 
and  popular  use. 

Bearing  these  familiar  rules  in  memory,  let  us  paint  the 
defendants'  proposed  structure  to  the  eye,  and  see  whether, 
in  1790,  it  would  have  been  called  a  bridge,  or  been  a  bridge 
of  any  kind  whatever,  according  to  its  general  or  popular 
use,  or  according  to  its  technical  use,  or,  I  might  safely  add, 
any  use  whatever. 

The  answer  describes  the  proposed  structure  very  par- 
ticularly. The  defendants  admit  that  they  intend  to 
erect  a  structure,  so  as  to  lay  iron  rails  thereon,  upon 
which  engines  and  cars  may  be  moved  and  propelled  by 
steam ;  that  said  structure  will  not  be  connected  with  the 
shore  on  either  side  of  said  river,  except  by  a  piece  of 
timber  under  each  rail,  and  must  necessarily  be  made  in 
such  a  manner,  as  near  as  may  be,  so  as  to  make  it  im- 
possible for  man  or  beast  to  cross  said  river  upon  said 
structure  except  in  the  cars  of  the  defendants ;  that  the 
only  roadway  between  said  shores  and  said  structure  will 
be  two  or  more  iron  rails,  each  of  the  width  of  two  and 
one-quarter  inches,  and  of  the  height  of  four  and  a 
naif  inches,  laid  and  fastened  upon  timber,  said  rails 


NOVEMBER   TERM,  1860.  509 


Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

being  at  a  distance  of  four  feet  ten  inches  asunder.  It 
will  be  perceived  that  the  defendants  do  not  propose  to 
erect  any  mixed  structure,  such  as,  for  instance,  the  rail- 
road bridge  over  the  Raritan,  at  New  Brunswick,  or  Roeb- 
ling's  bridge,  over  the  Niagara,  which  have  a  common 
bridge  below,  and  a  railroad  bridge  above;  nor  is  it  a 
structure  with  a  pathway  and  rails  laid  on  them  like  a 
street  railroad,  and  which  furnish  foot-paths,  but  is  a  rail- 
way pure  and  simple,  according  to  its  original  concep- 
tion, elevated  above  the  ground.  The  elemental  idea  of 
this  structure  of  the  defendants  is  two  rails  laid  across  the 
river,  so  narrow  and  so  wide  apart  as  that  neither  man  or 
beast  can  walk  over  it.  It  has  no  pathway — it  has  no 
horseway — it  has  no  wagonway — it  has  no  roadway.  If 
such  a  thing  had  been  built  in  1790,  would  it  have  been 
called  or  been  a  bridge  of  any  kind  whatever?  If  it  would 
not,  would  it  become  so  because  we  have  since  discovered  a 
mode  of  being  passed  over  it  ?  The  legislature  of  1790  in- 
tended to  give  to  the  complainants  a  monopoly  of  the  trav- 
eling over  bridges,  but  they  did  not  enact,  nor  did  they  intend 
to  enact  that  mankind,  in  the  coming  time,  should  not  dis- 
cover and  use  a  mode  of  being  passed  over  rivers  on  struc- 
tures which  were  not  bridges. 

I  repeat,  is  this  proposed  structure  a  bridge  within  the 
meaning  of  the  term  as  used  in  the  charter  of  1790? 
What  kind  of  a  structure  was,  in  1790,  represented  by  the 
sign  bridge?  It  did  not,  in  1790,  or  ever  before  or  since,  rep- 
resent any  structure  or  material  thing  which  had  not  a  foot- 
way across  tJie  stream.  Nor  for  the  last  thousand  years  has 
the  term  bridge,  either  in  England  or  this  country,  repre- 
sented any  structure  which  had  not  a  footway,  a  horse- 
way,  and  a  wagon  way.  The  footway  for  man  and  beast 
is  of  the  very  essence  of  the  bridge.  It  is  that,  with  re- 
spect to  bridges,  without  which  nothing.  The  footway  is 
the  bridge,  and  the  bridge  is  the  footway.  What  must 
have  been  the  history  of  civilization  upon  this  subject? 
A  bridge,  reduced  to  its  simplest  elements,  is  a  plank 

VOL.  II.  2  I 


510   COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

resting  on  the  natural  banks,  furnishing  a  foot-path. 
This  foot-path  is  the  seminal  principle  of  the  bridge.  All 
the  rest  is  but  growth  and  development.  Take  away 
the  plank,  and  there  is  nothing  of  a  bridge.  The  next 
advance  would  be,  perhaps,  a  natural  rock  in  the  middle 
of  the  stream,  serving  as  a  rude  pier  for  the  ends  of  the 
planks  to  rest  upon.  Again,  take  away  the  planks,  and 
there  is  nothing  of  the  bridge.  Adding  the  artificial  pier 
or  the  artificial  abutment  is  nothing  towards  a  bridge. 
Neither  are  necessary.  It  is  still  the  pathway  that  is  the 
bridge.  So  when,  in  the  progress  of  skill,  they  widen  the 
pathway  to  make  it  a  horseway,  and  then  again  widen 
it  so  that  beasts,  may  draw  wagons  after  them,  it  is  still 
the  pathway  that  makes  the  bridge.  So  when  they  add 
handrails  and  balustrades,  it  is  only  to  make  the  bridge, 
as  we  commonly  say,  or  the  pathway  more  secure.  And 
so,  in  all  its  stages  of  development,  from  the  rude  plank 
to  Trajan's  magnificent  arches  over  the  Danube,  or  to 
Roebling's  sublime  but  inverted  arch  over  the  boiling 
chasm  of  Niagara,  or  Stevenson's  rigid  tubes  over  the 
wide  waters  of  the  St.  Lawrence,  it  is  the  pathway  only 
that  makes  the  bridge.  The  pathway,  by  whatever  con- 
trivance supported,  whether  supported  on  the  natural 
banks  and  rock,  or  the  strong  towers  of  Niagara — what- 
ever the  kind  of  bridge  or  by  whatever  name  called,  it  is 
the  pathway  that  makes  the  bridge,  whether  it  be  a  float- 
ing or  a  flying  bridge — whether  of  boats,  like  that  of 
Xerxes  over  the  Dardanelles,  or  of  pontoons,  like  that  with 
which  a  modern  general  crosses  an  interposing  stream, 
whether  built  upon  piers  or  upon  arches ;  whether  sus- 
pended upon  ropes  or  sustained  by  its  own  rigidity ; 
whether  built  of  wood  or  stone — of  cast  or  wrought  iron ; 
whether  a  chain  bridge  or  wire  bridge ;  whether  one  arch 
or  many;  whether  resting  on  piling  or  on  solid  piers; 
whether  covered  or  not ;  whether  with  handrailings  or 
balustrades  or  not — it  is  still  the  pathway  that  makes  the 
bridge.  Nor  has  any  structure,  which  in  its  development 


NOVEMBER  TERM,  I860.  511 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

stopped  short  of  this  pathway  for  man  and  beast,  ever  in 
ancient  or  in  modern  times,  in  any  country  or  in  any  lan- 
guage having  a  synonym  for  the  term,  been  called  a  bridge. 
I  have  been  able  to  find  no  royal  charter,  no  act  of  parlia- 
ment, from  the  time  the  word  bridge  first  fell  from  the  lips 
of  our  Anglo-Saxon  ancestors,  until  the  present  moment,  no 
act  of  the  legislature  in  our  own  state  or  any  of  our  sister 
states,  from  the  earliest  colonial  records,  no  decision  of  any 
court,  at  any  time  or  in  any  country  whatever,  no  dictionary, 
no  encyclopedia,  no  work  on  mechanical  science,  no  scientific 
work  specially  upon  bridges,  where  a  structure  without  a 
pathway  was  ever  denominated  a  bridge. 

The  very  nature  and  essence  of  the  thing  forbid  that 
there  should  be  a  bridge  without  a  pathway.  The  bridge, 
for  all  time  and  in  all  countries,  has  been  but  the  con- 
tinuation of  the  ordinary  roadway.  The  only  difference 
between  a  bridge  and  the  rest  of  the  road  is,  that  in  the  road, 
the  pathway  rests  immediately  on  the  earth,  while  in  the 
bridge  it  does  not.  Whenever  the  pathway  of  the  ordi- 
nary road  does  not  rest  immediately  on  the  earth,  it  is 
called  a  bridge,  by  whatever  contrivance  supported,  whether 
by  water,  by  piers,  by  arches,  by  wires,  by  tubes,  and 
whether  it  passes  over  rivers  or  gorges,  or  ravines  or 
valleys,  or  canals  or  railroads,  and  we  can  just  as  well 
have  a  road  without  a  bottom  as  a  bridge  without  a  foot- 
way. 

Although  I  feel  that  I  should  apologize  for  so  doing,  I 
will,  notwithstanding,  consider  this  question  a  little 
longer.  As  I  have  before  remarked,  the  only  arbiter  of 
the  meaning  of  a  term  is  use,  and  the  best  evidence  of 
this  use  is  to  be  found — first,  in  the  different  provisions 
of  the  act  of  1790 ;  secondly,  in  the  provisions  of  the  differ- 
ent acts  of  parliament,  from  early  times  to  the  present, 
in  the  royal  patents  for  building  toll  bridges,  in  the  acts 
of  our  own  and  other  states,  from  works  on  mechanical 
science,  from  history  and  from  tradition,  and  our  own  use 


612      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  y.  Hoboken  Land  Co. 

in  our  own  times.  Let  us  first  examine  the  act  in  question, 
and  ascertain  if,  by  possibility,  the  legislature  of  1790  could 
have  deemed  a  structure  across  the  Hackeusack  without  a 
pathway  for  man  or  beast,  to  be  a  bridge,  a  bridge  of  any 
kind  whatever.  It  will  be  recollected  that  they  were  pro- 
viding against  competition  by  bridges.  They  were  not  pro- 
viding against  competition  by  any  other  mode  of  crossing  the 
river.  It  was  not  providing  against  competition  by  ferries, 
by  canals,  by  telegraph,  by  balloons,  or  by  tunnels.  The 
legislature  were  not  providing  against  competition  by  struc- 
tures which  were  not  bridges.  They  did  not  intend  to  say 
that  there  should  be  no  discovery  of  modes  of  passing  over 
structures  which  were  not  bridges.  When  they  spoke  of 
bridges,  they  knew  what  they  were  dealing  with.  They  had 
existed  for  untold  centuries,  and  they  could  estimate,  with 
some  degree  of  accuracy,  what  effect  the  grant  of  a  monopoly 
would  have  for  a  hundred  years,  nor,  in  this  case,  would 
their  calculations  have  been  much  out  of  the  way ;  nor 
can  we,  even  at  this  day,  say  the  act  was  not  a  wise  one. 
But  they  could  not  deal  with  or  estimate  the  effects  of  a 
prohibition  for  an  hundred  years  of  discoveries,  which 
would  enable  men  to  be  crossed  over  rivers  upon  struc- 
tures which  were  not  bridges,  as  the  result  has  proved ; 
nor  did  they  intend,  nor  am  I  certain  that  they  would 
have  had  any  constitutional  power,  thus,  in  order  to  bene- 
fit the  present,  to  dwarf  future  generations,  thus  to 
mummy  up,  as  it  were,  an  infant  nation  in  its  swaddling 
clothes. 

But  let  us  return  to  this  charter  of  1790.  Can  it  be 
possible,  under  its  provisions,  that  any  structure  across 
the  Hackensack,  which  had  no  footway,  horseway,  road- 
way, or  wagonway,  could  have  been  deemed  a  bridge? 
The  charter  gives  to  the  complainants  the  power  to  build 
a  bridge  over  the  Hackensack,  but  it  does  not  prescribe 
what  kind  of  a  bridge  it  shall  be;  the  kind  is  left  en- 
tirely to  the  discretion  of  the  complainants.  Now,  if  the 


NOVEMBER  TERM,  1860.  513 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

defendants'  proposed  structure  be  a  bridge,  if  there  can 
be  a  bridge  without  a  footway,  then  it  would  have  been 
competent  for  them  to  have  built  such  a  structure  as  that 
of  the  defendants,  and  insisted  that  they  had  performed 
the  conditions  of  their  charter.  Suppose  they  had  done 
so,  and  called  the  conscript  fathers  of  that  legislature  to 
look  at  a  couple  of  iron  rails,  without  any  footway,  laid 
across  the  river,  and  told  them  that  that  was  a  bridge,  and 
that  it  gave  them  an  exclusive  right  for  an  hundred  years 
to  stop  all  passage  across  the  river,  except  upon  their  con- 
trivance, would  not  the  conscript  fathers  aforesaid,  have 
deemed  themselves  mocked  ?  If  such  a  structure  could 
have  been  deemed  a  bridge,  would  the  legislature,  when 
they  were  providing  by  act  to  facilitate  the  passage  across 
the  river,  have  done  an  act  which  would  have  barred  the 
passage  for  an  hundred  years?  We  can  only  account  for 
this  in  one  way,  and  that  is,  that  the  term  bridge,  ex  vi 
tennini,  meant  a  footway ;  and  an  idea  that  a  structure  with- 
out a  footway  could  be  a  bridge,  never  was  dreamed  of  by 
any  one. 

The  title  of  the  act  is,  an  act  for  building  bridges  over 
the  Passaic  and  Hackensack.  The  preamble  commences 
— u  whereas,  the  public  good  will  be  advanced  by  erecting 
bridges  over  the  said  rivers."  No  kind  is  prescribed — 
any  kind  answers  the  conditions  of  the  charter.  The 
complainants  say,  two  iron  wires,  stretched  across  the 
river,  without  a  pathway,  without  a  horse  way,  without  a 
wagon  way,  is  a  kind  of  bridge.  If  so,  it  would  have  com- 
plied with  the  charter;  and  if  so,  how  could,  as  said  in 
the  preamble,  the  public  good  have  been  advanced  ?  Is 
it  not  manifest  from  this,  that  the  legislature,  by  the  term 
bridge,  could  not  have  meant  any  structure  which  had 
not  a  footway?  But  again,  the  charter  makes  provision 
for  the  complainants  to  construct  a  common  road  or. 
causeway  from  Newark  to  Jersey  City,  leading  up  to  and 
from  this  bridge,  at  great  expense,  across  the  marshes. 
If  the  term  bridge  meant  a  structure  without  a  footway 


514      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

for  man  or  for  animals  carrying  or  drawing  their  burthens, 
it  would  have  been  a  compliance  with  the  charter,  if  the 
complainants  had  built  such  a  structure  as  the  defendants 
propose  to  build,  and  claimed  the  monopoly  for  an  hun- 
dred years.  But  how  is  it  possible  to  conceive  that  the 
legislature  of  1790  could  have  meant,  by  the  term  bridge, 
a  structure  which  nothing  which  could  come  by  the  road 
they  were  to  build  could  by  possibility  cross?  If  the  de- 
fendants' structure,  if  erected  in  1790,  would  not  have 
been  a  bridge  then,  if  erected  now  it  could  not  be,  in  the 
language  of  the  15th  section  of  the  complainants'  charter, 
any  other  bridge.  The  legislature  of  1790  knew  perfectly 
well  that,  by  the  term  bridge,  ex  vi  termini,  no  structure 
like  that  proposed  by  the  defendants  could  be  imposed 
upon  them  •  that  no  structure  could  be  imposed  upon 
them  which  was  not  the  continuation  of  the  ordinary 
roadway,  which  had  not  a  footway,  a  iiorseway,  a  wagon - 
way  and  roadway.  They  knew  perfectly  well  that,  from 
the  earliest  colonial  records  of  this  and  of  all  the  other 
states,  and  for  a  thousand  years  in  England,  the  simple 
term  bridge  stood  as  a  sign  for  a  structure  over  a  river, 
which  furnished  a  foot-path  and  a  horse- path  so  wide  that 
man  and  all  animals  could  walk  over  it,  and  draw  over  it 
all  vehicles  in  ordinary  use,  and  which  nature  had  given 
them  strength  to  draw.  And  they  also  equally  well  knew 
that  every  kind  of  bridge  did  and  must  furnish  this  foot- 
path or  it  was  no  bridge ;  and  all  they  provided  against  was, 
that  it  should  not  interfere  with  the  navigation.  But  the 
complainants  still  contend  that  the  defendants'  proposed 
structure  is  a  bridge. 

4  We  are  asked,  as  if  the  question  could  not  be  answered, 
is  not  a  railroad  bridge  a  bridge  of  some  kind  or  other? 
The  question  is  best  answered  by  asking  another — is 
not  a  hippopotamus  a  horse,  a  sea-lion  a  lion,  a  mermaid  a 
maid?  and  if  it  is  murder  to  kill  a  maid,  is  it  not  murder 
to  kill  a  mermaid  ?  If  it  is  unlawful  to  build  a  bridge, 
is  it  not  unlawful  to  build  a  railroad  bridge?  But  supposo 


NOVEMBER  TERM,  1860.  515 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

we  call  a  railroad  bridge  a  bridge,  as  the  charter  of  1790 
does  not  prescribe  the  kind,  they  had  as  much  right  to 
build  one  kind  as  another,  and  then  if  the  complainants, 
instead  of  building  the  one  they  did,  should  have  built 
such  a  one  as  the  defendants  propose  to  build,  verily  the 
legislature  would  have  done  a  prosperous  business  for 
their  day  and  generation.  With  the  intent  to  provide 
for  the  more  easy  passage  across  the  river,  they  would 
have  got  a  structure  which  neither  man  or  beast  could 
even  get  on,  much  less  over,  and  made  a  valid  contract 
with  the  complainants  that  no  other  bridge,  no  other 
structure  upon  which  man  or  beast  could  cross,  should  be 
built  for  an  hundred  years.  Such  are  the  inevitable  re- 
sults of  this  charter,  if  in  1790  the  term  bridge  did  not 
mean  a  structure  affording  a  pathway,  a  horseway,  and  a 
carriageway,  or  if  a  structure  without  either,  a  mere  wire 
stretched  across  the  river  was  a  bridge,  a  bridge  of  any 
kind  or  any  other  bridge.  So  if  we  look  at  the  agree- 
ment between  the  commissioners  and  the  complainants, 
which  I  am  treating  as  if  it  were  part  of  the  charter.  The 
commissioners  thereby  grant  to  the  complainants  the  said 
bridges  to  be  erected,  with  the  tolls,  which  are  not  to 
exceed  for  passing  the  bridge  for  a  single  person  three 
cents,  man  and  horse  seven  cents,  horse  and  chair  fifteen 
cents,  wagon  and  horse  and  horses  twenty-nine  cents, 
wagon  and  four  horses  forty-eight  cents.  Through  all 
this,  do  they  not  use  the  term  bridge  as  a  term  converti- 
ble with  footway  ?  For  horse  and  man  passing  over  the 
bridge,  what  is  that  but  walking  over  the  footway  ?  For 
horse  and  wagon  passing  over  the  bridge  ten  cents.  Take 
away  the  footway  and  what  bridge  is  there  to  pass  over? 
So  strictly  is  this  idea  preserved,  that  there  is  no  franchise 
of  toll  given  for  anything  which  does  not  use  the  footway 
and  roadway  as  on  the  ordinary  road.  Thus  toll  is  given 
for  animals  on  foot  and  on  animals  drawing  their  bur- 
thens, but  no  toll  is  given  for  anything  in  wagons  or  that 
does  not  actually  touch  the  roadway.  Thus,  if  the  wagon 


516   COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

is  loaded  or  empty,  whether  it  has  twenty  passengers  or  none, 
makes  no  difference  in  the  toll.  If  a  man  passes  on  foot  he 
pays  toll,  but  if  in  a  wagon  or  other  vehicle  he  pays  none. 
And  thus  I  might  go  through  every  clause  of  not  only  the 
charter  of  1790,  but  also  the  supplements  and  the  agreement. 
The  fundamental  idea  in  all  is,  that  a  bridge  is  the  ordinary 
roa/lway  for  man  and  beast,  and  only  distinguishable  from  it 
in  that  the  ordinary,  roadway  rests  immediately  on  earth, 
while  the  bridge  does  not. 

I  have  said  that,  in  technical  language,  the  terra  bridge 
has  always  stood  for  a  structure  that  had  a  pathway,  a 
horseway,  a  wagonway  and  a  roadway;  that  in  no  law- 
paper  or  document  was  a  structure  which  had  not  a  foot- 
way, as  its  elemental  idea,  ever  denominated  purely  and 
simply  a  bridge.  I  shall  not  enter  into  detail  upon  this 
subject.  I  would  have  to  transcribe  the  statutes  at  large 
from  the  times  of  the  great  charter.  I  would  have  to 
transcribe  the  pamphlet  laws  of  this  and  of  all  other  states 
from  the  earliest  records.  In  every  general  law  respect- 
ing highways  and  bridges,  in  every  provision  for  their 
erection  or  repair,  in  every  charter  for  particular  bridges, 
in  every  canal  charter,  in  every  railroad  charter  from  the 
earliest  times,  no  structure  that  has  not  the  footpath  for  its 
elemental  idea  is  taken  for  a  bridge.  In  all  it  is  assumed 
that  there  can  be  no  bridge  without  the  footway.  What 
means,  in  every  canal  and  railroad  charter,  the  provision, 
that  when  they  pass  a  public  road  or  through  a  farm  the 
company  shall  build  a  bridge  over  the  canal  ?  Dues  it 
not  imply,  and  so  has  it  not  always  universally  been 
understood,  that  by  the  term  is  meant  a  structure  with  a 
footway?  Would  the  defendants'  proposed  structure 
save  the  company  from  indictment  for  a  violation  of  this 
requirement?  I  have  considered  this  question  as  if  we 
should  be  confined  to  the  meaning  of  the  word  bridge  in 
1790,  when  it  was  used.  I  only  did  so  to  be  more  certain 
of  safe  reasoning.  It  was  not  necessary  in  the  present 
instance.  It  could  safely  be  yielded  to  the  complainants 


NOVEMBER  TERM,  1860.  517 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

to  take  its  meaning  at  the  present  day.  The  term  bridge, 
standing  by  itself,  unqualified  by  any  other  sign,  still,  in  all 
common  parlance  and  in  all  technical  language,  means  a 
structure  whose  elemental  idea  is  the  footway.  Take,  for 
instance,  the  act  of  the  legislature  passed  with  respect  to  this 
very  river  Hackensack,  on  the  17th  of  March,  1860.  Pam. 
Laws  769.  The  act  is  entitled  "  An  act  to  authorize  the 
building  of  a  bridge  over  the  Hackensac'k  river,"  and  reads 
as  follows :  "  And  be  it  enacted  that  it  shall  be  lawful  for 
the  board  of  chosen  freeholders  of  the  county  of  Bergen  to 
build  and  construct  a  bridge  across  the  Hackensack  river,  at 
the  village  of  Hackensack."  And  this  is  the  whole  act. 
They  prescribe  no  form  of  bridge.  Could  the  freeholders 
Pave  themselves  from  responsibility  by  building  a  structure 
upon  which  neither  man  or  beast  could  get  on,  much  less 
crossover?  Take  the  bridge  now  building  under  our  eyes, 
over  the  Delaware.  The  commissioners  are  authorized  to 
build  a  bridge.  Would  they  be  deemed  to  have  built  a 
bridge  if  they  erect  a  structure  with  no  covering,  no  balus- 
trades, no  handrails,  no  floor  or  footway,  with  only  two 
narrow  iron  rails  stretching  their  grand  proportions  over  the 
river,  and  nothing  below  but  the  rushing  waters  ?  Does 
this  not,  most  conclusively,  show  that  the  legislature  used 
the  term  bridge  as  one  which,  ex  vi  termini,  could  not  exist 
without  the  footpath  ?  But  this  is  only  one  of  thousands 
to  be  found  in  all  our  pamphlet  acts  and  in  every  volume  of 
the  annual  laws  of  all  our  states  for  the  last  hundred  years. 
You  can  hardly  open  a  page  of  any  of  them,  but  you  will 
find  the  legislatures  using  the  term  bridge  as  being  con- 
vertible with  the  term  footway,  as  calling  for  a  structure 
affording  a  footway  and  a  horseway  wide  enough  for  them 
to  walk  over  and  draw  their  burthens  over  with  them. 
In  not  one  of  them,  in  any  state,  or  from  the  earliest  time 
to  the  present  moment,  is  the  term  bridge,  or  any  bridge, 
or  any  other  bridge,  used  to  signify  a  structure  which  has 
not  the  footway.  So,  again,  take  up  the  law  reports  iu 


518      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

England  or  in  this  country.  Bridges  have  always,  from  very 
early  times,  occupied,  more  or  less,  the  attention  of  the  courts. 
Upon  what  indictment,  in  England,  has  it  ever  been  a  good 
defence,  either  by  counties  or  individuals,  bound  to  build 
them,  that  a  bridge  was  a  structure  that  did  not  require  a 
footway,  a  horseway,  and  a  wagon  way  ?  The  same  remarks 
may  be  made  of  the  reports  of  our  own  country.  I  find, 
indeed,  in  the  early  reports,  no  definition  of  a  bridge  any 
more  than  I  do  of  light,  every  one  assuming  that  everybody 
knows  perfectly  well  what  a  bridge  is.  It  is  always  assumed 
as  a  footpath  across  a  river,  and  to  which  there  is  no  excep- 
tion, not  even,  as  I  expect  to  show  hereafter,  the  En  field 
bridge  case,  in  17  Connecticut.  So,  again,  if  we  pass  out  of 
the  region  of  the  law,  we  can  collect  a  respectable  library  of 
works  devoted  exclusively  to  the  matter  of  bridges ;  but  in 
none  can  you  find  the  slightest  hint  that  a  thing  without  a 
footway  is  a  bridge.  I  shall  not  quote  definitions  from 
dictionaries  and  encyclopedias,  but  only  remark  that  they 
all  define  or  assume  a  bridge  to  be  a  structure  with  a  foot- 
path. 

Now,  bearing  in  mind  that  a  bridge,  by  the  concurrent 
testimony  of  all  past  time,  in  every  possible  shape  and 
form,  is  but  the  ordinary  road  carried  across  the  river, 
by  whatever  contrivance  supported,  what  resemblance 
has  the  proposed  structure  of  the  defendants  to  one?  la 
it  any  continuance  of  the  ordinary  road  across  the  river? 
Could  any  animal,  traveling  on  the  ordinary  road,  use  it? 
What  is  its  elemental  idea?  Two  iron  wires  stretched 
across  the  river,  so  narrow  and  so  wide  apart  as  to  afford 
no  footway  to  man  or  beast.  Do  two  wires  make  any 
difference?  Is  not  one  as  good  a  bridge  as  two?  Does 
it  make  any  difference  whether  the  iron  wires  are  four 
feet  or  four  miles  asunder?  It  is  true  that  the  defendants 
may  go  on,  and,  by  laying  plank  across  their  structure, 
make  a  footpath  for  man  and  beast,  and  then  it  will,  quo 
ad  hoe,  be  a  bridge.  They  may  thus  make  their  structure 


NOVEMBER  TERM,  1860.  519 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

not  only  a  bridge,  but  also  a  railroad  bridge  and  a  rai(- 
v:iy  bridge,  and  by  putting  glass  supports  under  the  rails, 
also  a  telegraph  bridge.  All  these  structures  may  thug 
be  combined  in  one.  A  short  reference  to  the  history  of 
railways  will,  perhaps,  best  illustrate  what  I  mean.  Curi- 
ously enough,  the  first  railroads  ever  built  were  under- 
ground railroads,  viz.,  those  built,  in  the  coal  mines  of 
England,  to  facilitate  the  miners  in  drawing  their  hand- 
cars through  tl>e  low  and  dark  coal  galleries  to  the  foot 
of  the  shaft.  The  idea  was  soon  transferred  to  the  upper 
air.  They  were  first  built  from  the  mouth  of  the  shaft  to 
an  adjoining  harbor,  and  were  at  first  rudely  constructed 
of  timber  rails,  and  drawn  by  animals,  and  so,  of  course, 
had  foot-paths.  They  were  the  ordinary  roadways,  except 
that  rails  were  laid  in  them.  These  railroads  crossed 
streams  upon  structures  which  necessarily  had  foot-paths, 
and  were  properly  denominated  railroads  and  railroad 
bridges.  They  were  roads  in  respect  to  their  having  the 
ordinary  footways  for  beasts,  and  railroads  in  respect  to 
the  rails  upon  them.  So  structures  by  which  they  crossed 
streams  were  properly  denominated  railroad  bridges. 
They  were  roads  in  respect  to  their  being  the  continua- 
tion of  the  ordinary  roadways  or  foot-paths,  and  bridges 
in  respect  to  their  pathways  not  resting  immediately  upon 
the  earth,  and  railroad  bridges  in  respect  to  the  rails 
upon  them.  But  let  the  foot-path  disappear  from  this 
structure,  and  it  would  neither  be  a  bridge  nor  a  railroad, 
uor  a  railroad  bridge.  It  would  be  a  railway  pure  and 
simple.  It  would  be  no  more  a  bridge  than  the  rest  of 
the  distance  would  be  a  road,  if  its  bottom  should  sink 
out  of  sight.  This  is  the  way  in  which  it  has  happened 
that  the  term  railroad  bridge  has  come  to  be  frequently 
applied  to  those  mixed  railroad  structures,  and  is  entirely 
correct  when  they  have  the  footway.  This  use  of  the 
term  has  become  the  more  common  by  their  frequently 
being  built  in  this  way  So  it  is  with  the  railroad  bridge 
over  the  liaritaii  at  New  Brunswick,  the  wire  brida^e  over 


520       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

the  Niagara,  and,  perhaps,  the  Victoria  bridge  over  the 
St.  Lawrence.  These  structures  are  not  the  less  bridges 
because  they  have  also  railroad  tracks  on  them,  or  be- 
cause cars  and  locomotives  roll  over  them.  That  is  not 
the  question.  The  question  is  not,  whether  the  structure 
may  not  be  a  bridge  as  well  with  as  without  the  rails, 
but  whether  it  can  be  a  bridge  without  the  footway.  If  a 
railroad  should  be  laid  down  in  Broadway,  New  York, 
it  would  not  be  less  a  road  because  of  the  rails  and  cars. 
But  would  it  be  a  road, .if  the  whole  bottom  of  the  street 
should  fall  out,  and  leave  nothing  but  the  rails  and  an 
unfathomable  gulf  below?  It  is  the  mixed  structures  to 
which  the  term  railroad  bridge  has  been  generally  applied, 
and  is,  as  to  them,  perfectly  correct.  But  I  am  not  aware 
that  the  term  railroad  bridge  has,  except  in  the  most  loose 
and  casual  manner,  been  applied  to  a  structure  without  a 
footway,  to  a  railway  pure  and  simple  over  a  river.  If 
it  has,  a  locomotive  has  quite  as  often,  and  quite  as  con- 
sistently, been  called  a  steam-horse,  and  will  prove  as  logi- 
cally that  a  locomotive  is  a  horse,  as  that  a  railway  bridge 
is  a  bridge.  Indeed,  it  appears  to  me  that  the  steam- 
horse  is  quite  as  much  a  horse  as  that  a  railway  bridge  is 
a  bridge.  To  be  sure  he  drinks  larger  draughts  of  water 
from  his  trough;  his  food  is  somewhat  coarser;  the  one 
eats  the  grass  of  the  field,  the  other  devours  the  trees  of 
the  forest ;  his  neigh  is  somewhat  louder  j  his  heart,  as 
he  champs  upon  the  bit  to  start,  is  fired  by  an  intenser 
heatj  as  the  driver  gives  him  the  rein,  the  breath  of  his 
nostrils  beclouds  his  pathway,  and  distancing  at  a  bound 
his  puny  competitor,  he  shouts  his  challenge  to  the  sun, 
as  over  hill  and  valley,  over  mountain  and  prairie,  he 
holds  on  his  tireless  flight  towards  the  occido-orient.  But 
this  steam-horse  has  no  feet,  and  his  bridge  wants  no  foot- 
path. The  bridge  is  the  congener  of  the  horse,  and  the 
railway  of  the  locomotive.  The  bridge  presents  to  ter- 
restrial animals  the  natural  form  adapted  to  their  mode  of 
progression ;  the  viaduct  to  the  powers  of  steam  on.  land, 


NOVEMBER  TERM,  1860.  521 

Proprietors  of  Bridges  v.  Hohoken  Land  Co. 

the  material  form  adapted  to  its  mode  of  progression  ;  the 
telegraph  wire  to  electricity,  the  material  form  adapted 
to  its  mode  of  progression  ;  the  water  to  the  steam  ferry, 
the  material  form  adapted  to  its  mode  of  progression  ;  the 
canal  to  the  propeller,  the  material  form  adapted  to  its 
mode  of  progression.  But  all  these  start  from  different 
seminal  principles  of  thought,  develop  themselves  into 
entirely  different  forms,  and  have  always  been  distin- 
guished by  different  verbal  signs.  The  horse  and  the 
steam  horse  are  both  capable  of  rapid  motion,  and  that  is 
all  they  have  in  common ;  the  bridge  and  the  railway 
bridge  are  both  structures  across  rivers,  and  that  is  all 
they  have  in  common;  the  railway  bridge  as  far  exceeds 
his  rival  in  the  peculiar  manifestations  of  his  powers  as 
the  steam  horse  does  his  rival,  and  yet  falls  as  far  short  of 
the  principle  of  the  bridge  as  the  locomotive  does  of  the 
horse;  the  horse  has  life,  and  the  bridge  has  bottom;  the 
Woraotive  has  no  life,  and  the  viaduct  has  no  bottom. 
The  bridge  wgs  made  for  the  horse,  and  the  viaduct  for 
Behemoth.  Take  from  the  one  its  life,  and  it  is  no  longer 
a  horse;  take  from  the  other  its  foot-path,  and  it  is  no  longer 
a  bridge.  The  structure  of  the  defendants  might  have  stood 
across  the  Hackensack  for  a  thousand  years,  and  it  would 
have  stood  in  solitude.  It  would  have  had  no  comrade  until 
the  steam  horse  came,  and  then  they  would  instinctively  have 
known  each  other. 

I  have  said  that  no  structure  over  a  river  which  had 
not  a  footway  for  man  and  beast  was  ever  called  a  bridge. 
Such  structures  are  very  numerous,  and  have  existed  for 
several  thousand  years.  Take,  for  instance,  the  Roman 
aqueducts,  built  for  supplying  their  cities  with  water. 
They  started  from  high  altitudes,  and  were  carried  to  the 
cities  by  gradually  descending  planes.  In  their  course, 
they  were  dug  through  hills,  and  carried  by  arches  over 
rivers  and  valleys.  Some  of  them  are  still  existing,  and 
the  remains  of  others  are  scattered  over  Europe  and  Asia, 
from  the  pillars  of  Hercules  to  the  stormy  Euxine.  But 


522      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

they  were  never  called  ponies.  Why  not  ?  They  were 
structures  across  rivers.  There  were  their  massive  abut- 
ments of  solid  masonry,  their  long  vistce  of  lofty  piers  and 
of  springing  arches,  wide  enough  and  strong  enough  to 
carry  over  them  the  imperial  armies.  What  was  wanted 
to  their  being  bridges?  Clearly  only  the  pathway  for 
man  and  animals.  Put  pathways  on  them,  and  they  are 
instantly  ponies;  take  them  off,  and  they  are  instantly 
bat  aquceductce.  So  take  the  structure  alongside  of  the 
complainants'  bridge  carrying  water  into  Jersey  City. 
What  is  wanting  to  this  being  a  bridge?  It  is  a  structure 
over  a  river — it  rests  upon  piling.  It  carries  merchandise 
into  Jersey  City.  Why  do  not  the  complainants  enjoin 
it,  and  force  it  to  pay  tolls  into  their  coffers  for  every 
gallon  of  water  that  passes  over  it?  The  only  difference 
between  it  and  the  proposed  structure  of  the  defendants 
is,  that  the  one  transports  merchandise  across  the  Hack- 
ensack  by  the  centripetal  power  of  gravity,  the  other  by 
the  centrifugal  power  of  fire.  Put  a  pathway  on  it,  how- 
ever, and  it  is  instantly  a  bridge;  take  it  off,  and  it  is 
none.  Again,  who  ever  thinks  of  calling  a  canal  viaduct 
a  bridge?  And  yet  why  not?  It  has  its  abutments,  its 
piers,  and  its  arches  •  but  its  waters  are  no  footways  for  man 
or  beast. 

Suppose   the    Morris   canal    had    seen    fit   to  cross    the 
Ifackensack    upon    piers  and    arches,  would    the  complain- 
ants enjoin    its  canal   boats  and    propellers  under  the  alle- 
gation that  it  is  a  bridge?     And  yet  wby  not?     Would  ifc 
not  have  everything  of  a  bridge,  except  that  its  waters  are 
not   footways?     If  these  two  heavy  ir'yn  wires  of  the  de- 
,  fendants  across  the  stream  are  a   bridge,  why  are  not  the 
telegraph  wires  a  bridge  ?    They  are  structures  across  the 
,  river ;    they  are  suspended   upon   piling ;  they  do  the  busi- 
ness of  the  bridge.      The  only  difference  between  the  two 
.wires  of  the  defendants  and  the  many  wires  of  the  telegraph 
>  is,  that  the  one  expresses  man   by  steam,  the  other  thought 
i  by  lightning.     Some  of  us  are  old  enough   to  remember, 


NOVEMBER  TERM,  I860.  623 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

that  long  after  this  charter  of  1790  was  passed,  hut  before 
the  days  of  railways  and  telegraphs,  when  an  arrival  hap- 
pened at  New  York,  an  express  was  started  from  Jersey 
City.  Mounted  on  the  fleetest  charger  that  could  he  had, 
with  his  news  in  his  saddle-hags,  he  started  at  full  speed 
toward  Newark.  Arrived  at  the  Haekensack,  he  stopped 
a  hurried  moment  to  pay  his  toll,  horse  and  rider,  and 
then  again  plunged  on  his  headlong  course  towards  the 
Passaic,  rattling  along  the  turnpike,  thundering  over  the 
bridge,  clattering  up  the  pavement,  his  horse  bathed  in 
foam  and  screaming  to  the  gathering  crowds,  "  I  come, 
the  herald  of  a  noisy  world,  news  from  all  nations."  On 
what  bridge,  now,  does  he,  this  herald,  cross  the  Hackensack? 
He  stops  at  no  bridge;  he  pays  no  toll;  the  contents  of 
his  budget,  unheard,  unseen,  fly  with  electric  speed,  for 
weal  or  woe,  around  the  earth,  using  the  wire  for  his 
bridge,  and  the  lightning  for  his  courser.  But  why  is 
not  the  telegraph  wire  a  bridge  within  the  argument 
of  the  complainants?  It  is  a  structure  across  the  river 
for  the  more  convenient  passage  of  mail  matter.  The 
mail  only  carries  signs,  and  so  does  the  telegraph.  Neither 
are  ponderable,  and  yet  both  are  conveyed  in  material 
matter.  The  telegraph  bridge,  like  the  railway  bridge, 
detracts  from  the  tolls  of  the  bridge.  But  for  it,  the  ex- 
press horse  and  his  rider  would  still  have  to  speed  it 
along  the  turnpike.  Furnish  a  footpath  to  the  wires,  and 
they  are  instantly  a  bridge ;  but  without  it,  transport 
across  them  what  you  may,  by  what  power  you  may,  steam 
or  electricity,  and  it  never  can  be  such.  The  bridge  is 
the  conception  of  a  structure  adapted  to  the  natural  modes 
of  locomotion  of  man  and  his  co-terrestrials,  and  when  we 
have  the  superb  structures  of  Roebling  and  of  Stevenson, 
with  their  footpaths  and  rails,- and  cars  drawn  by  horse- 
power, we  have  the  extreme  limits  of  its  growth — it  has 
reached  the  highest  point  of  developement  permitted  to  it 
by  the  inexorable  law  of  its  existence.  It  is  necessarily 
limited  to  short  distances,  to  slow  motions,  to  small  loads, 


521       COURT  OF  ERRORS  AND  APPEALS. 

»  ___ _^_^___ 

Proprietora  of  Bridges  v.  Hoboken  Land  Co. 

and  to  the  puny  efforts  of  mere  animal  powers.  But  in 
the  railway  bridge  and  the  telegraph  bridge  man  frees 
the  latent  forces  of  nature,  and  harnesses  their  exhaust- 
less  powers  to  his  car.  And  yet  it  is  true  that  the  via- 
duct is  a  structure  more  simple  than  the  bridge,  and  the 
telegraph  than  either.  But  such  is  the  law  of  progress. 
As  man  penetrates  into  the  arcana  of  nature;  as,  through 
long  series  of  ages,  he  laboriously  and  slowly,  at  infinite 
distance,  but  by  infinitessimal  approaches,  advances  him- 
self toward  the  presence  of  Omnipotence;  as  results  be- 
come sublime,  means  become  simple.  Stone — Bronze — 
Iron — Bridge — Viaduct— Telegraph.  That  slender  wire,  so 
fragile  as  if  the  robin's  tread  might  part  it,  nothing,  unless 
insulated  from  earth,  do  we  in  blindness  touch  a  chord  by 
which  Omniscience  sends  his  mandates  through  the  uni- 
verse !  The  viaduct  and  the  telegraph  are  no  children  of 
the  bridge.  They  are  born  of  thoughts  mightier  far  than 
it — steam  and  -electricity  I  The  one,  the  highest  type  on 
earth  of  infinite  power,  the  other  of  infinite  speed.  The 
railway  bridge  and  the  telegraph  bridge!  But  bridges 
only,  as  the  waters  of  the  ocean  are  a  bridge  for  leviathan, 
and  the  air  a  bridge  for  the  eagle. 

I  shall  now  review  the  authorities  cited  upon  the  argu- 
ment, but  shall  first  refer  to  one  I  believe  not  there 
cited,  viz.,  that  of  The  Freeholders  of  Sussex  v.  Steader,  3 
Har.  112.  It  appeared,  by  the  case,  that  as  Strader  was 
driving  carefully  over  a  bridge,  the  abutment  of  which 
was  defective,  one  of  his  horses  fell  off,  and  was  killed. 
The  question  was,  whether  the  chosen  freeholders  or  the 
overseers  of  the  highways  were  responsible.  Justice 
Dayton,  in  delivering  the  opinion  of  the  court,  says,  "  the 
term  bridge  conveys  to  my  mind  the  idea  of  a  passage- 
way by  which  travelers  and  others  are  enabled  to  pass 
safely  over  streams  and  other  obstructions.  A  structure 
of  stoue  or  wood,  which  spans  the  width  of  the  stream, 
stretching  its  gaunt  proportions  from  water's  edge  to 
water's  edge,  but  which  is  wholly  inaccessible  at  either 


NOVEMBER  TERM,  1860.  525 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

end,  whatever    it    may  be    in    archi lecture,  does    not    meet 
my  ideas  of  what   is  meant  in  law  and  common    parlance 
by  a  bridge."     But  if  instead  of  the  abutment*  merely  being 
defective,  Justice    Dayton    had    looked    upon    the   defend- 
ants'   structure,   stretching     its     gaunt     proportions     from 
water's  edge  to  water's  edge,  consisting  of  only  two  wires 
four    feet    and    ten    inches   asunder,  and    nothing    between 
them,   with   no   footway,   no   horseway,  and   no   wagon  way, 
is  it  not  apparent  that  it  is  the  last  thing  that  would  have 
met  his  ideas  of  a  bridge  ?     Justice  Dayton  then   proceeds: 
"  From  the  time  of  Learning   and    Spicer,   the    books    lit- 
erally teem  with  enactments  about  roads  and  bridges.     The 
legislation  of  the   state  affords   many  instances  where  com- 
panies and    individuals   are   either  bound  or  authorized  to 
construct   bridges,  and   in  such   cases   the  word    bridge   is 
used   as    tantamount   to  a  complete   passage-way.      It    has 
never    been    doubted    that  when  companies   have   been  re- 
quired to  construct    bridges    over   canals  or  railroads,  that 
they  were  bound  to  fill  up  the  ends,  so  as  to  make  com- 
plete and  safe  passage-ways  for  the  public  or  the  owners 
of  adjoining  land.     So,  too,  our  statutes   have   authorized 
owners  of  land  to  construct   bridges  over   private   or   by- 
roads, over   drains   and   ditches;    and    under   this   phrase- 
ology it  has  never  been  doubted   that  the  owner  is  bound 
to  fill    up  the   ends  of  these    bridges,  so   far   as   to   make 
them    safe    and    convenient     passage-ways."      White   and 
Nevius,    justices,   concurred    in   all     things    with    Justice 
Dayton.     Chief  Justice  Hornblower  says:    "I  fully  and  iu 
all    things    concur    in    the   opinion    just   delivered    by    my 
brother    Dayton."      This    definition    of  a    bridge,    as   con- 
tained   in    the   opinion  of  Justice   Dayton,    has   since   got 
into  the    law  dictionaries,  Bouvier   expressly  founding    his 
definition  of  a  bridge    upon    it.       Can    any  one    read    this 
opinion,  and    for    a    moment    think    that    if    the   Supreme 
Court,   in    1840,   had    looked    upon    two    naked    iron    rails 
stretching    their   gaunt    proportions    from    water's   edge    to 
water's   edge,  with    no    footway,   no    horseway,  no    wagou- 
VOL.  II.  2  K 


526      COURT  OR  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

way,  and  DO  roadway,  from  which  a  horse  could  not  fall  off, 
only  because  he  could  not  get  on,  that  they  would  have  called 
it  a  bridge? 

The  next  case  in  the  order  of  time,  and  the  first  one 
cited  on  the  argument,  is  that  of  The  Mohawk  Bridge 
Company  v.  The  Utica  and  Schenectady  Hailroad  Company, 
6  Paige  564.  This  was  in  1837.  The  railroad  company 
were  proceeding  to  erect  their  structure  for  the  passage  of 
railroad  cars  about  one  hundred  rods  above  that  of  the 
Mohawk  bridge,  and  the  complainants  filed  their  bill, 
stating,  among  other  things,  that  the  proposed  railroad 
bridge  would  divert  travel  from  the  toll-bridge.  It  will 
be  recollected  that,  before  this  decision,  the  courts  of 
New  York  had  always  held  that  the  grant  of  a  toll-bridge 
franchise  was  by  its  very  terms  exclusive,  and  so  in  this 
case  the  Mohawk  bridge  had  contended.  It  will  be  per- 
ceived, therefore,  that  for  the  purposes  of  the  argument, 
it  made  no  difference  whether  there  were  express  words 
of  exclusion  in  the  grant  to  the  bridge  company  or  not, 
and  therefore  the  Chancellor  said,  "  the  legislature  have 
not  deprived  a  future  legislature  of  the  right  to  authorize 
the  erection  of  another  bridge.  And  even  if  the  grant 
had  in  terms  given  the  exclusive  right  to  erect  a  toll- 
bridge,  the  subsequent  grant  to  the  railroad  to  cross  the 
river  with  their  railway  would  not  have  been  an  infringe- 
ment, as  the  railroad  bridge  would  not  be  a  toll-bridge 
within  the  meaning  of  the  grant."  The  case  of  The 
Charles  River  Bridge  v.  The  Warren  Bridge,  11  Peters'  Re- 
ports, had  not  been  reported  when  this  opinion  was  written, 
as  it  is  not  referred  to  either  in  the  opinion  or  upon  the 
argument. 

The  Chancellor  had,  therefore,  two  questions  directly 
before  him :  one  was,  whether  a  grant  of  a  toll-bridge  was 
ex  vi  termini  exclusive ;  the  other  was,  whether  a  railroad 
bridge  was  a  toll-bridge  within  the  meaning  of  the  grant. 
If  he  proceeded  upon  the  first  question,  he  must  overrule 
a  series  of  decisions  in  New  York,  for  which  the  Charles 


NOVEMBER  TERM,  1860.  527 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

river  bridge  case  had  not  yet  led  the  way,  and  he  therefore 
chose  to  put  his  opinion  upon  both  grounds,  holding,  first, 
that  a  grant  of  a  toll-bridge  was  not  ex  vi  termini  exclusive ; 
and,  in  the  second  place,  that  a  railroad  bridge  was  not  a  toll- 
bridge.  It  appears  to  me,  therefore,  that  the  Chancellor's 
opinion  on  this  last  point,  is  not  justly  subject  to  the  criti- 
cism that  it  was  a  mere  dictum;  but  the  question  lay  plainly 
in  his  path  of  argument,  and  demanded  a  solution,  unless  he 
was  satisfied  to  overrule  the  current  of  previous  decisions  of 
his  own  state,  and  rest  the  case  entirely  on  that.  He  refused 
the  injunction,  upon  the  ground  that  a  railroad  bridge  was 
not  a  toll-bridge,  as  well  as  upon  the  other  ground. 

The  m-xt  case,  iu  the  order  of  time,  is  that  of  The  Enfield 
Toll- Bridge  Company  v.  The  Hartford  and  New  Haven 
Railroad  Company,  17  Conn.  56.  This  was  decided  in 
June,  1845.  As  this  case  was  greatly  relied  on  at  the  argu- 
ment, by  the  complainants,  and  some  surprise  expressed  that 
it  is  not  adverted  to  in  the  opinion  of  the  Chancellor,  I  shall 
consider  it  with  some  particularity.  The  legislature  of  Con- 
necticut, in  1798,  had  authorized  the  complainants  to  erect  a 
bridge  over  die  Connecticut,  at  Enfield,  with  power  to  collect 
tolls  for  an  hundred  years.  The  charter  further  provided 
that  no  person  should  have  liberty  to  erect  another  bridge 
anywhere  between  the  north  line  of  Enfield  and  the  south 
line  of  Windsor.  In  1835,  the  legislature  chartered  the 
defendants,  and  gave  them  power  to  construct  a  rail- 
road from  Hartford  to  Springfield,  and,  if  necessary,  to 
build  a  railroad  bridge  over  the  Connecticut.  The  rail- 
road having  commenced  to  build  their  bridge  within  the 
forbidden  limits,  the  bridge  company  applied  for  an  injunc- 
tion. 

The  Chief  Justice,  in  delivering  the  opinion  of  the  court, 
says :  "  The  defendants  claim  that  they  have  a  grant 
to  lay  a  railroad  or  way  to  cross  the  Connecticut  river; 
that  this  structure  over  the  ri'ver  is  part  of  their  railway, 
and  uot  a  bridge,  in  the  sense  of  the  charter.  What,  then, 


528   COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

is  a  bridge?  It  is  a  structure  of  wood,  iron,  brick,  or  stone, 
ordinarily  erected  over  a  river,  brook,  or  lake,  for  the  more 
convenient  passage  of  persons  or  beasts,  and  the  transporta- 
tion of  baggage."  Taking  this  definition  to  be  entirely 
accurate,  the  misfortune  is  that  it  does  not  embrace  the  pro- 
posed structure  of  the  Hoboken  Land  and  Improvement 
Company.  They  propose  to  erect  no  such  structure.  In  the 
first  place,  is  the  structure  they  propose  to  erect,  one  "  ordi- 
narily erected  for  the  more  convenient  passage  of  man  and 
beasts?"  The  definition,  evidently,  never  was  intended  to 
refer  to  any  such  structure  as  the  defendants  propose  to  erect 
over  the  Hackensack.  The  structure  ordinarily  erected  over 
a  river  for  the  more  convenient  passage  of  man  and  animals, 
is  one  having  something  man  and  animals  may  walk  over— 
a  footpath.  A  bridge  erected  for  the  more  convenient  pass- 
age of  man  and  beast,  which  had  no  bottom  to  it — which 
was,  in  fact,  nothing  more  than  two  telegraph  wires  stretched 
across  the  river — would,  I  think,  to  the  man  and  beast 
which  came  to  make  a  more  convenient  passage,  appear 
not  an  ordinary,  but  a  most  extraordinary  structure  for 
that  purpose.  But  that  the  Chief  Justice  is  reasoning 
about  a  very  different  structure  from  that  proposed  by  the 
Hoboken  company,  is  manifest,  for  he  immediately  adds 
as  follows:  "And  whether  it  is  a  wide  raft  of  logs  float- 
ing upon  the  water,  and  bound  together  with  withes,  or 
whether  it  rests  on  piles  of  wood,  or  stone  abutments  or 
arches,  it  is  still  a  bridge."  All  this  is  true,  and,  indeed,  I 
do  not  know  anything  that  gives  a  better  footway  for  man 
and  beast  than  a  wide  raft  bound  together  with  withes. 
But  a  horse,  or  a  horse  and  cart,  I  take  it,  would  find  it 
a  very  different  thing  to  cross  the  Connecticut  on  two  tele- 
graph wires,  four  feet  ten  inches  asunder.  The  Chief  Jus- 
tice then  remarks  :  "The  particular  manner  in  which  this 
structure  is  built,  is  not  described,  but  it  is  said  to  be 
much  in  the  manner  common  to  railroad  bridges  —  the 
bottom  covered  with  plank,  and  the  sides  secured  by  railing." 


NOVEMBER  TERM,  1860.  529 

Proprietors  of  Bridges  y.  Hoboken  Land  Co. 

It  seems  hardly  worth  while  to  proceed  with  our  criticism 
of  this  opinion  of  the  Chief  Justice  of  Connecticut,  after 
he  has  told  us  that  the  structure  he  is  trying  to  prove  to 
be  a  bridge  has  its  bottom  covered  with  plank.  By  that 
simple  statement,  he  gives  us  a  structure  with  a  pathway, 
a  horseway,  a  wagonway'  and  a  roadway.  He  even  adds 
the  handrails.  He  can  have  no  difficulty  after  this  in 
proving  his  structure  a  bridge.  But  the  question  is,  not 
whether  it  would  be  a  bridge  with  its  bottom  covered 
with  plank,  but  whether  it  \?ould  be  one  without  it.  Leave 
its  bottom  covered  with  plank,  and  it  will  no  more  cease 
to  be  a  bridge  because  rails  are  laid  in  it,  than  Broadway 
will  cease  to  be  a  street,  if  rails  are  laid  in  it.  But  take 
the  bottom  out  of  both,  and  the  Chief  Justice's  structure 
will  no  more  be  a  bridge  than  Broadway  will  be  a  street. 
The  structure  the  Hoboken  company  propose  to  build  is 
precisely  the  opposite  of  that  about  which  the  Chief  Jus- 
tice is  reasoning.  The  one  has  a  bottom,  the  other  has 
not.  The  Chief  Justice  then  again  proceeds — "  It  is  a 
matter  of  notoriety  that  railroad  bridges  are  built  upon 
solid  abutments  of  mason  work,  and  resting  on  piers  of 
stone  between  the  abutments,  thus  giving  security  and 
strength  to  the  frame  above."  And  he  adds — "  It  is  not 
easy  to  see  wherein  such  a  structure  differs  from  an  ordi- 
nary bridge,  except  that,  as  it  is  to  endure  a  greater 
burthen,  it  is  more  solid  and  substantial."  Nor,  as  I 
frankly  confess,  can  I,  with  its  solid  foundation  and  its 
bottom  covered  with  plank  1  The  brethren  of  the  bridge, 
with  the  sovereign  pontiff  (Pontifex  Maximus)  at  their 
head,  could  not  have  built  a  better.  But  the  question  is, 
if  the  learned  Chief  Justice  of  Connecticut  had  stripped 
the  plank  from  off  the  bottom,  and  undertaken  to  walk, 
Blondiu-like,  upon  one  of  these  iron  ropes  over  the  dizzy 
waters,  whether  he  would  then  have  seen  no  difference, 
and  would  have  said  judicially,  that  that  was  a  structure 
ordinarily  erected  over  a  river  for  the  more  convenient 
passage  of  men  and  animals.  The  Chief  Justice  then 


530       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

proceeds — "  It  would  seem,  therefore,  as  if  this  was  what 
would  be  ordinarily  called  a  bridge."  He  need  not  have 
qualified  the  sentence  with  a  "seem."  There  was  nothing 
ever  more  absolutely  certain  than  that  a  structure  upon 
piers  and  abutments,  with  a  pathway  of  solid  plank  rest- 
ing on  them,  is  a  bridge.  The'  Chief  Justice  then  pro- 
ceeds as  if  not  yet  certain  that  a  roadway  resting  upon 
solid  piers  is  a  bridge,  and  remarks — "  But  we  agree  with 
the  defendants'  counsel  that  it  is  not  the  name  that  is 
sufficient  to  designate  it."  Here  he  recognizes  the  prin- 
ciple we  have  before  enunciated,  that  the  calling  a  struc- 
ture a  railroad  bridge  will  not  make  it  a  bridge,  any  more 
than  calling  a  locomotive  a  steam-horse  will  make  it  a 
horse. 

He  then  again  proceeds — "  We  must  then  consider  the 
object.  What  was  the  intent  of  this  structure  ? "  I  had 
supposed  that  this  was  a  question  of  essential  structure,  a 
question  what  material  thing  was  represented  by  the  sign 
bridge,  and  I  confess  I  am  unable  to  see  how  the  object 
and  intent  with  which  a  man  builds  a  thing  can  make  it 
either  a  bridge  or  a  horse.  But  the  Chief  Justice,  never- 
theless, answers  his  own  question  himself,  and  thus  gives 
us  its  object  and  intent :  "  The  safe  and  expeditious  pas- 
sage of  persons,  whether  from  greater  or  less  distances, 
over  the  stream,  in  the  cars  or  carriages  provided  for  that 
purpose,  together  with  all  baggage  or  freight  intrusted  to 
the  care  of  the  company."  Now  that  he  correctly  states 
the  object  of  the  railroad  structure  is  most  true;  but  that 
a  bridge  ever  had  such  an  object  or  intent  I  have  first 
learned  from  his  enuniciation.  Will  any  one  produce  an 
instance?  When,  where,  in  what  country,  in  what  age,  in 
what  case  in  England,  where  tolls  are  sometimes  attached 
to  the  servitude  to  build,  in  what  act  of  parliament,  in 
what  charter  of  the  crown,  in  what  act  of  incorporation 
in  this  country,  in  what  bridge  built  by  state,  county  or 
private  person  or  public  corporations,  was  ever  the  safe 
and  expeditious  passage  of  persons  over  the  stream  in  the 


NOVEMBER  TERM,  1860.  531 

Proprietors  of  Bridges  v.  Hobokcn  Land  Co. 

cars  provided  for  that  purpose,  together  with  all  baggage 
or  freight,  intrusted  to  the  care  of  the  company,  the  object 
and  intent  of  a  bridge.  On  the  contrary,  it  is  just  this 
object  and  intent  which  bridge  builders  never  could 
have  had.  Who  ever  heard  of  a  bridge  owner  furnishing 
or  being  obliged  to  furnish  cars  or  carriages  to  transport 
passengers  and  freight  across  his  bridge?  It  involves 
loading  and  unloading  freight  and  passengers  on  each 
side  of  the  river,  and  the  whole  idea  is  incongruous  with 
this  mode  of  structure.  But  there  is  no  case  I  have  seen 
(the  proprietors  of  the  bridges  over  the  Passaic  and  Hack- 
ensack  certainly  cannot,)  where  bridge  builders  can  charge 
for  freight  and  passengers  so  transported.  They  are  not 
among  the  things  to  which  tolls  attach  ;  so  that  if  the  in- 
tent and  object  of  a  bridge  be  as  supposed  by  the  Chief 
Justice,  those  who  build  bridges  for  the  public  use  must 
have  the  benevolent  object  and  intent  to  build  them  at 
their  own  cost  for  nothing,  and  provide  the  cars  and 
motive  power  extra  and  gratis.  The  Chief  Justice  has 
fallen  into  this  expression  by  not  adverting  to  the  differ- 
ent senses  in  which  the  word  passage  is  used  in  reference 
to  crossing  a  stream.  Wherever,  in  the  dictionaries  or 
encyclopedias,  or  in  statutes,  the  word  passage  is  used  in 
reference  to  a  bridge,  it  is  used  in  its  active  sense,  as 
when  a  man  walks  over  a  bridge  he  is  said  to  pass  over  a 
bridge,  and  is  called  a  foot-passenger ;  when  the  term 
passage  is  used  in  crossing  a  river  upon  a  structure  not  a 
bridge,  the  term  is  used  in  its  passive  sense,  as  when  a 
man  passes  over  the  ocean  to  Europe  in  a  ship,  or  if  he 
crosses  over  a  river  in  a  caual  boat,  or  in  a  ferry  boat  or 
a  railroad  car.  In  all  these  cases  it  is  called  a  passage, 
but  the  term  is  then  used  in  its  passive  sense.  If  he  or 
any  other  animal  goes  over  a  bridge,  he  goes  by  his  own 
powers  of  locomotion;  if  he  goes  on  a  boat  or  a  railroad 
car,  he  is  carried  by  others.  A  want  of  advertence  to  this 
distinction  has  caused,  I  apprehend,  much  of  the  confu- 
sion upon  this  subject.  The  Chief  Justice,  agaiu  speak- 


532      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

ing  of  the  railroad  structure,  says:  "It  may  not,  and  it  is 
not  intended  to  accomplish  all  the  objects  of  a  common 
bridge,  as  it  is  not  adapted  to  the  common  vehicles  in 
use;"  but,  he  adds,  "can  that  fact  change  its  character  as 
a  bridge  ?"  It  is  apparent  that  the  Chief  Justice  has  gone 
on  with  his  reasoning  until  he  has  forgotten  his  own  defi- 
nition. He  had  just  before  told  us  that  a  bridge  was  a 
"structure  ordinarily  erected  over  a  river  for  the  more 
convenient  passage  of  persons  or  beasts  and  the  trans- 
portation of  baggage."  How  a  structure  not  adapted,  to 
the  common  vehicles  in  use  can  be  one  ordinarily  erected 
over  a  stream  for  the  more  convenient  passage  of  persons, 
is  more  than  I  can  see,  and  is  a  fact  which  I  have  never 
observed.  But  the  Chief  Justice  asks  the  question  as  if 
it  was  conclusive  upon  this  point,  "  Can  the  fact  that  the 
structure  is  not  adapted  to  common  vehicles  change  its 
character  as  a  bridge?"  I  answer,  most  certainly  not.  If 
it  is  a  bridge  at  all,  no  fact  can  change  its  character  as  a 
bridge.  In  pursuing  his  argument,  he  next  remarks,  "A 
bridge  adapted  only  to  foot-passengers  would  be  still  a 
bridge."  A  bridge  adapted  only  to  foot-passengers  is  un- 
doubtedly a  bridge,  and  was  probably  the  first  one  ever 
built.  But  how  it  follows  that,  because  a  structure 
adapted  to  only  foot-passengers  is  a  bridge,  that  therefore 
a  structure  upon  which  a  foot-passenger  can  neither  get, 
stand  or  walk,  is  a  bridge,  is  a  sequence  which  I  cannot 
see.  The  Chief  Justice  proceeds:  "And  it  would  hardly 
be  claimed  that  such  a  bridge,  to  wit,  one  with  a  foot- 
path, might  be  erected  by  the  side  of  the  plaintiffs.'  under 
the  provisions  of  their  act."  In  this  I  entirely  concur. 
But  the  Hoboken  Land  and  Improvement  Company  pro- 
pose to  erect  no  such  footway;  and  if  they  do,  they  will, 
under  the  assumptions  I  am  considering  this  case,  become 
responsible. 

The  Chief  Justice  then  remarks:  "We  find,  then,  this 
structure,  with  the  form  of  a  bridge,  with  the  name  of  a 
bridge,  with  the  character  of  a  bridge,  and  doing  (he 


NOVEMBER  TERM,  1860.  533 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

work  of  a  bridge;  we  cannot,  then,  but  conclude  that  it 
is  a  bridge."  This  may  all  be  very  good  logic,  as  applied 
to  the  structure  the  Chief  Justice  has  built  in  his  own 
contemplation;  but  it  has  no  application  whatever  to  the 
proposed  structure  of  the  defendants  in  this  cause.  A 
structure  without  a  foot-path  for  man  and  beast  has 
neither  the  form  of  a  bridge,  the  name  of  a  bridge,  the 
character  of  a  bridge,  nor  does  it  do  nor  can  it  do  the 
work  of  a  bridge.  As  to  its  form,  no  bridge  was  ever 
built  that  had  no  bottom  to  it.  Two  wires  stretched 
across  the  stream  has  not  a  single  characteristic  of  the 
form  of  a  bridge.  It  is  no  more  a  bridge  than  a  sieve  is 
a  pail — the  one  will  no  more  carry  passengers  than  the 
other  will  carry  water ;  nor,  as  we  have  seen,  had  such  a 
structure  ever  the  name  of  a  bridge.  I  do  not  know  if  I 
understand  exactly  what  the  Chief  Justice  means  by  the 
character  of  a  bridge,  but  I  have  never  learned  that  two 
wires  stretched  across  a  stream,  without  any  pathway  for 
man  or  beast,  ever  enjoyed  such  a  reputation.  Nor  can 
such  a  structure  by  possibility  do  any  of  the  business  of  a 
bridge.  What  business  that  a  bridge  ever  did  in  all  time 
past  can  by  possibility  pass  over  or  be  done  upon  the 
proposed  structure  of  the  defendants?  The  only  business 
of  a  bridge  is  the  passage  of  men  and  animals  upon  its 
foot-path,  drawing  the  ordinary  vehicles.  This  the  de- 
fendants' structure  cannot  do.  Nor  can  the  bridge  do  the 
business  of  this  viaduct;  and  if  it  did,  it  could  charge  no 
toll  for  it.  This  structure  of  the  defendants  does  the 
business  of  the  bridge  only  in  the  way  a  ferry  or  canal 
boat  would  do  it.  It  bears  more  resemblance  to  the  ferry 
than  the  bridge.  In  the  ferry  the  passenger  is  buoyed 
up  by  the  boat — in  the  viaduct,  by  the  rails— on  the  bridge, 
by  the  foot-path.  On  the  bridge,  he  passes  over  by  his 
own  active  motions;  on  the  viaduct  and  the  ferry,  he  is 
passed  over  in  the  boat  or  car  of  the  company.  The  ferry 
boat  is  kept  to  its  course  by  the  helm,  and  the  car  by  its 
flanges.  It  is  true  a  man  may  pass  over  the  bridge  in  an 


534       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

omnibus,  but  then  he  is  an  omnibus,  and  not  a  bridge 
passenger.  The  bridge  toll  is  the  same  if  there  be  one  or 
twenty  passengers  in  the  omnibus;  the  toll  charge  is  for 
using  the  footway.  We  cannot,  then,  but  conclude  that 
the  proposed  structure  of  the  defendants  is  not  a  bridge. 
The  result  in  Connecticut  was  en  rapport  with  the  reason- 
ing. The  court  enjoined  the  railway  bridge,  not  because 
it  had  rails  upon  it,  but  .because  it  had  a  foot-path  upon  it. 
I  conclude  that  this  case  in  17  Connecticut  proves  nothing. 
The  structure  about  which  the  court  reasoned  being  one  the 
very  reverse  of  that  the  defendants  in  this  case  propose  to 
erect. 

The  next  case  iu  order  cited  on  the  argument  is  that  of 
Thompson  v.  The  New  York  and  Harlem  Railroad,  3  Sand. 
Ch.  R.  625.  This  was  in  1846,  one  year  after  the  pre- 
ceding case,  but  which  is  not  referred  to,  it  being  then 
not  yet  printed.  This  last  case  was  this:  The  legislature 
of  New  York,  on  the  31st  of  March,  1790,  gave  to  Lewis 
Morris  the  right  to  build  a  bridge  across  Harlem  river ; 
and,  by  the  same  act,  it  was  provided  that  it  should  not  be 
lawful  for  any  person  whatsoever  to  erect  any  other  bridge 
over  said  river,  except  for  the  private  use  of  the  inhabi- 
tants of  the  townships  of  Harlem  and  Morrissania.  Mor- 
ris erected  the  bridge,  and  his  rights  were  held  by  the 
complainant.  It  will  be  observed  that  this  act  was  only 
a  few  months  before  the  one  of  the  complainants  in  this 
cause,  and  is  identical  in  language,  as  if  the  one  had  been 
copied  from  the  other.  In  1837,  the  inhabitants,  under 
the  above  reservation  in  their  favor,  built  a  new  bridge 

over  the  Harlem,  and  on  the  10th ,  1840,  sold  it  to  the 

defendants,  reserving  to  the  inhabitants  of  Morrissaniu 
their  rights.  The  defendant?,  having  a  legislative  grant 
to  build  a  railroad  bridge  over  the  Harlem,  laid  the  track 
of  their  railway  on  the  floor  of  this  bridge,  and  it  became 
a  part  of  their  railroad  from  New  York  to  Westchester. 
The  bill  was  to  enjoin  the  railroad  company  from  using 
it  for  their  cars,  upon  the  allegation  that  such  use  in- 


NOVEMBER  TERM,  1860.  535 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

fringed  the  franchise  given  to  Lewis  Morris  in  1790.  The 
Vice-Chancellor  refused  to  restrain  the  defendants  from 
using  their  structure  as  a  railroad  bridge.  It  was  said  here, 
upon  the  argument,  that  the  Vice  Chancellor  put  the  case 
upon  the  ground  that  no  exclusive  right  was  given.  It  does 
not  appear  to  me  that  it  is  obnoxious  to  this  criticism.  The 
Vice-Chancel  lor  does,  indeed,  say  arguendo,  "  that  the 
legislature  do  not  declare  that  they  will  not  permit  another 
bridge  to  be  erected,"  meaning,  merely,  that  although  the 
legislature  say  that  it  shall  not  now  be  lawful  to  erect  a 
bridge,  yet  they  do  not  say  that  they  will  not  make  it  lawful 
hereafter.  But  the  language  of  that  exclusive  grant  is  iden- 
tical with  that  now  before  the  court,  and  the  Vice-Chan- 
cellor goes  on  afterwards,  and  meets  the  whole  case.  He 
finally  put  the  case  expressly  upon  the  ground  that"  the 
progressive  spirit  of  the  age  had  developed  and  matured  a 
mode  of  conveying  passengers  and  freights  from  place  to 
place,  across  rivers,  which  was  unknown  in  1790."  This 
could  hardly  be  said  if  he  had  deemed  the  defendants'  struc- 
ture a  bridge.  The  next  case,  in  the  order  of  time,  is  that 
of  HcRee  v.  The  Wilmington  and  Raleigh  Railroad  Company, 
2  Jones'  Law  R.  186.  This  was  so  late  as  1855.  The  legis- 
lature of  North  Carolina,  in  1766,  authorized  one  Haren  to 
build  a  bridge  over  Cape  Fear  river,  and  provided  therein 
that  it  "  should  not  be  lawful  for  any  person  whatever,  to 
build  any  bridge  within  six  miles  of  the  same."  The  defend- 
ants pleaded  that  they  had  a  charter  to  build  a  railroad  over 
this  tract  of  country,  and  that  they  erected  the  bridge  com- 
plained of  as  part  of  their  road.  It  has  been  objected  to,  in 
this  case,  that  the  court  put  it  upon  their  bill  of  rights.  I 
think,  however,  a  careful  examination  will  show  that  this 
was  not  exactly  so.  The  North  Carolina  court  appears  to 
have  been  puzzled,  in  the  first  place,  as  we  have  been  puz- 
zled, with  a  syllogism.  The  complainants'  counsel  argued 
thus:  The  legislature  have  prohibited  the  building  of  any 
other  bridge;  a  railroad  bridge  is  a  bridge:  therefore,  a 


636       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

railroad  bridge  is  prohibited.  The  syllogism  being  perfect, 
the  court,  at  first,  appear  to  have  got  a  little  excited  at  the 
audacity  of  the  pretension,  and  said  "it  was  unreasonable;" 
but,  being  too  good  logicians  not  to  see  that  that  was  no 
answer,  they  returned,  determined  to  attack  the  syllogism  in 
due  form.  Their  first  assault  was  upon  its  first  member. 
They  said  the  prohibition  against  building  any  other  bridge, 
was  against  their  declaration  of  rights.  But  here,  again,  as 
lawyers,  not  seeing,  very  clearly,  how  a  man  could  get  rid  of 
an  honest  contract  by  a  mere  declaration  of  his  rights,  with 
true  southern  gallantry,  they  again  return  to  the  charge, 
determined,  this  time,  to  bring  their  logical  batteries  to  bear 
upon  the  second  member  of  the  syllogism,  viz.,  that  a  railroad 
bridge  is  a  bridge,  and  to  attack  the  enemy  with  his  own  weap- 
ons. The  final  result  was  pronounced  in  the  following  words . 
"  We  are  not  now  to  decide  whether  the  franchise  or  monop- 
oly was  entirely  abolished  by  the  declaration  of  rights.  It 
may  be  that  the  franchise  still  exists,  possibly  so  far  as  to 
prevent  any  other  person  from  setting  any  person  or  thing 
over  the  river  in  the  way  of  an  ordinary  bridge.  That  is  a 
different  question.  We  decide  now,  that  notwithstanding 
the  exclusive  grant,  the  legislature  had  the  power  to  grant 
to  the  defendants  the  right  to  construct  a  railroad,  and,  in 
BO  doing,  to  cross  Cape  Fear  river,  and  consider  'the  transit* 
over  the  river  as  a  part  of  their  road."  And  so  the  plain- 
tiffs lost  their  case  because  the  court  persisted  in  calling  a 
railroad  bridge  a  transit  instead  of  a  bridge,  and  had,  con- 
sequently, to  suffer  a  non-suit;  so  that  this  case  is  not 
justly  obnoxious  to  the  criticism  that  it  was  decided  upon 
their  bill  of  rights.  On  the  contrary,  the  court  put  their 
decision  expressly  upon  the  ground  that  the  railroad 
bridge  was  no  bridge,  but  only  "a  transit."  Their 
decision  was  that  that  railroad  structure,  however  called, 
was  no  bridga  The  next  case  having  reference  to  the 
term  bridge,  but  which  was  not  cited  on  the  argu- 
ment, is  that  of  Tolland  v.  Willington,  26  Conn.  578,  in 


NOVEMBER  TERM,  1860.  537 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

which  Judge  Ellsworth,  in  delivering  the  opinion  of  the 
court,  says,  "  a  bridge  is  considered  to  be  a  pathway  for 
traveling  over  a  stream  of  water."  He  also  cites  with 
approbation  the  case  of  The  Freeholders  of  Sussex  v.  Stra- 
der,  3  Har.  108,  and  also  the  definition  in  Brand's  Ency- 
clopedia, which  defined  a  bridge  to  be  a  "structure  for 
the  purpose  of  connecting  the  opposite  banks  of  a  river 
by  means  of  certain  materials  forming  a  roadway  from  one 
side  to  the  other."  The  only  other  case  I  shall  refer  to, 
which  also  was  not  cited  on  the  argument,  is  that  of  Tlte 
Cheshire  Railroad  ads.  ,  1  Foster's  (N.  H.)  Rep. 

29.  This  was  in  1850.  The  legislature  of  New  Hamp- 
shire, in  1783,  granted  to  Enoch  Hale  the  exclusive  right 
of  building  a  bridge  over  the  Connecticut,  within  certain 
limits,  and  of  receiving  tolls  thereon.  The  bill  was  filed 
by  those  holding  Hale's  rights  against  the  defendants,  to 
restrain  them  from  building  their  railroad  bridge  within 
the  prohibited  limits,  and  the  question  was  whether  that 
was  a  good  defence;  and  the  court,  although  they,  as  well 
as  the  counsel,  reasoned  very  loosely  upon  the  subject, 
decided  "  that  the  specific  differences  between  the  two 
structures  might  be  so  great  that  the  one  might  not  be  con- 
sidered as  infringing  upon  the  province  of  the  other."  So 
that  all  the  authorities,  whether  cited  on  the  argument  or 
which  I  have  met  with  otherwise,  look  to  nothing  as  a  bridge 
which  has  no  footway. 

Thirdly.  But  suppose  this  structure  of  the  defendants  will 
be  a  bridge  within  the  meaning  of  the  act  of  1790,  would  it 
interfere  with  any  of  the  franchises  of  the  complainants?  The- 
ground  upon  which  the  injunction  is  allowed,  if  allowed  at 
all,  would  be,  that  the  complainants'  franchises  are  property,, 
and  that  the  defendants  sought  to  condemn  them  without 
compensation. 

The  franchises  of  the  complainants  are  to  build  a  bridge 
over  the  Hackensaek,  use  it  themselves,  and  collect  tolls 
from  others,  and  prevent  anybody  else  interfering  with 
these  tolls  by  building  any  other  bridge.  The  complain- 


538       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

ants'  franchise  of  building  a  bridge  is  not  proposed  to  be 
interfered  with  nor  the  free  use  of  it  by  themselves.  If 
there  is  any  interference,  it  must  be  by  diminishing  their 
tolls  by  means  of  the  bridge  to  be  erected  by  the  defend- 
ants. The  franchise  of  the  complainants  is  to  collect  tolls 
of  men  and  beasts  when  they  pass  over  the  bridge,  also 
of  beasts,  when  they  draw  burthens  after  them.  But  sup- 
pose the  defendants  should  come  with  their  locomotives 
and  cars  to  go  over  the  complainants'  bridge,  there  is  no 
franchise  to  collect  tolls  of  them.  If  they  should  come 
with  a  car  drawn  by  one  horse  they  could  demand  ten 
cents  toll.  But  they  have  no  franchise  to  demand  toll  if 
it  comes  with  a  locomotive,  unless  they  make  the  same 
syllogism  with  respect  to  the  locomotive  that  they  do  with 
the  bridge,  viz.,  as  follows:  the  complainants  have  a  fran- 
chise to  charge  toll  on  a  horse ;  a  steam-horse  is  a  horse, 
therefore  they  have  a  franchise  to  charge  toll  on  a  steam- 
horse.  Passengers  in  the  cars  cannot  be  charged  any 
more  than  if  they  had  passed  in  an  omnibus,  and  it  is  the 
same  with  freight.  The  defendants'  franchise  is  to  col- 
lect tolls  from  passengers  and  freights  passing  in  their 
cars,  so  that  the  franchises  of  the  plaintiffs  and  defendants 
are  entirely  distinct.  The  plaintiffs  have  no  franchise 
to  collect  toll  on  anything  that  passes  or  can  pass  on  the 
defendants'  structure.  This  question  was  discussed  and 
decided  in  the  case  of  Thompson  v.  The  Harlem  Railroad, 
above  cited.  The  same  point  was  ruled  the  same  way  in 
The  Stourbridge  Canal  Company  v.  Whalcy,  2  Barn.  &  Ad. 
792,  and  in  the  case  of  Perrine  v.  The  Chesapeake  and  Dela- 
ware Canal,  9  Howard  192. 

But,  again,  all  legislation  in  England  and  in  this  coun- 
try has  always  proceeded  upon  the  assumption  that  the 
right  to  build  a  bridge  and  the  right  to  build  a  railroad 
or  a  railway  bridge  are  different  and  distinct  fran- 
chises, and  everybody  lias  always  acquiesced  in  the  dis- 
tinction. Who  would  or  has  even  thought  of  building  a 
railroad  bridge  under  a  franchise  to  build  a  bridge,  or  vice 


NOVEMBER  TERM,  1860.  639 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

versa?  or  to  build  a  road  under  a  franchise  to  build  a  rail- 
road, or  vice  versa?  No  terms  have  ever  been  kept  in  all 
legal  language  more  distinct,  and  better  practically  under- 
stood, than  a  road  and  a  railroad,  or  than  a  bridge  and  a 
railroad  bridge,  and  much  more  is  a  railway  bridge,  pure  and 
simple,  an  entirely  different  thing  from  either. 

Bub  it  has  been  contended  that,  whether  the  complain- 
ants have  any  rights  or  not,  whether  any  franchise  of 
theirs  is  proposed  to  be  taken  or  not,  that  the  defendants 
are  bound  to  have  commissioners  appointed  to  determine 
whether  the  defendants  wish  to  take  any  franchise  of  the 
complainants,  what  that  franchise  is  and  what  it  is  worth, 
and  that  this  court  should  enjoin  them  until  they  do  so. 
This  is  claimed  under  the  1st,  5th  and  6th  sections  of  the 
defendants'  charter.  Parn.  Laws,  1860,  page  213.  By  said 
first  section  it  is  enacted  that  the  defendants  shall  have 
power  to  build  a  railroad  from  Hoboken  to  Newark,  with 
power  to  erect  the  necessary  viaduct  over  the  Hacken- 
sack  river,  reserving  to  the  complainants  their  right  of 
compensation  under  the  5th  and  6th  sections  of  the  act. 
By  the  5th  section  it  is  provided  that  if  the  defendants 
fail  to  agree  with  any  corporation  owning  or  claiming  to 
own  any  franchise,  application  shall  be  made  in  writing, 
by  the  defendants,  for  the  appointment  of  commissioners, 
who  shall  examine  into  the  matter,  and  report  what  (if 
any  exist)  franchises  are  necessary  to  be  taken  ;  that  such 
application  shall  be  made  to  the  Chief  Justice,  setting 
forth  what  corporations,  the  defendants  are  informed 
claim  some  franchise  for  which  compensation  may  be 
asked  ;  which  commissioners  shall  meet  and  proceed  to 
view  and  examine  the  matter,  and  report  in  writing  what 
(if  any  exist)  franchises  are  necessary  to  be  taken,  and 
make  a  just  assessment  of  the  value  of  (if  any  exists)  the  fran- 
chise so  necessary  to  be  taken,  and  assessment  of  the  damages 
iof  the  same. 

Now  the  first  section  does  not'  except  from  the  de- 
fendants' graut  the  power  to  build  a  viaduct,  unless 


540      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

upon  the  payment  to  the  complainants  of  the  value  of 
their  bridge,  but  only  the  complainants'  right  to  compen- 
sation under  the  5th  and  6th  sections  of  the  defendants7 
act.  We,  of  course,  must  refer  to  these  sections  to  see 
what  these  rights  are.  Upon  such  reference,  we  perceive 
that  those  rights  are  compensations  only  for  franchises 
taken,  not  for  franchises  merely  claimed.  To  come,  there- 
fore, within  the  reservations  of  the  5th  and  6th  sections, 
the  complainants  must  show  a  franchise  taken,  or,  in 
other  words,  must  show  that  this  viaduct  is  a  bridge,  and 
that  they  themselves  have  a  franchise  to  charge  tolls  on 
passengers  and  freight  in  cars  drawn  over  structures  which 
are  not  bridges ;  therefore  this  question  is  not  affected, 
one  way  or  the  other,  by  this  reservation  in  the  first 
Bection. 

But  the  complainants  contend,  in  the  next  place,  that 
by  the  5th  section  of  the  act,  whenever  the  defendants  are 
informed  that  some  corporation  claim  some  franchise  for 
which  compensations  may  be  asked,  they  shall  apply  for 
commissioners  to  examine  the  matter,  and  report  what 
franchise  is  necessary  to  be  taken,  and  its  value,  and  that 
unless  they  do  so  in  every  case  of  claim  this  court  will 
enjoin  them.  It  is  apparent,  from  the  whole  scope  of 
these  5th  and  6th  sections,  that  their  only  object  was  to 
give  power  to  condemn  franchises  which  the  defendants 
wanted  to  take,  and  to  restrain  them  from  taking  more 
than  was  necessary,  and  not  to  enable  the  complainants  to 
force  the  defendants  to  take  their  franchises,  whether  the 
defendants  wanted  them  or  not.  Here  the  defendants  do 
not  wish  to  condemn  any  of  the  complainants'  franchises. 
They  do  not  want  them  at  all.  If  they  should  want  them, 
they  are  authorized  to  take  them  in  the  mode  prescribed 
in  their  charter,  and  then  they  must  call  the  commission- 
ers; but  until  they  do  so  want  them,  it  was  not  the  intent 
of  the  charter  to  force  them  to  do  so.  It  is  true,  that  if 
the  defendants  undertake  to  infringe  upon  or  use  the 
complainants'  franchises  without  a  compensation,  this 


NOVEMBER  TERM,   1860.  541 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

court  may  restrain  them,  but  then  it  will  he  under  a  right 
shown  by  the  complainants  to  the  franchise  the  defendants 
propose  to  use,  and  not  to  a  mere  claim  to  the  franchise. 

What  would  be  the  result  if  we  should,  when  it  is  appa- 
rent to  us  that  the  complainants  have  no  franchise  which  the 
defendants  propose  to  use,  enjoin  the  defendants?  It  is 
manifest  that  the  defendants  never  could  build  their  road, 
however  clear  their  right  to  do  so  might  be.  It  is  as  easy 
for  one  person  to  make  a  false  claim  as  another;  and,  as  soon 
as  the  commissioner  and  the  jury,  on  appeal,  have  disposed 
of  one,  another  may  be  started,  and  so  on  ad  infinitum.  And 
every  false  claim  must  be  alike  protected  under  the  wings 
of.  the  Court  of  Chancery;  and  the  time  of  this  court 
would  be  occupied  in  forcing  one  person  to  take  property, 
who  admits  that  he  does  not  want  it,  in  order  to  compel 
him  to  pay  its  value  to  another,  who  admjts  that  he  does 
not  own  it. 

I  am  of  the  opinion,  first,  that  the  proposed  structure  of 
the  defendants  is  no  bridge  of  any  kind  whatever,  as  the 
term  bridge  is  used  in  the  charter  of  1790;  and,  secondly, 
that  if  it  were  such  bridge,  that  the  franchises  given  to  the 
defendants  by  the  act  of  1860,  are  entirely  different  fran- 
chises from  those  given  to  the  complainants  in  their  charter 
of  1790;  that  the  railway  franchise  given  by  the  act  of 
1860,  to  the  defendants,  is  no  more  a  bridge  franchise  than 
it  would  be  a  steam  ferry  franchise,  a  canal  franchise,  or  a 
telegraph  franchise,  and  that  the  decree  of  the  Chancellor 
should  be  affirmed. 

OGDEX,  J.  A  chronological  statement  of  the  statutes 
from  which  the  parties  derive  their  rights,  with  particular 
references  to  the  sections  thereof  relied  on  by  them,  respect- 
ively, are  necessary  for  an  intelligent  determination  oi  the 
points  in  issue  in  this  cause. 

On  the  24th  of  November,  1790,  the  council  and  gen- 
eral assembly  of  this  state,  for  the  purpose  of  advancing 

VOL.  II  2  L 


542       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

the  public  good,  by  the  substitution  of  bridges  for  the  then 
existing  ferries,  as  declared  in  the  preamble,  passed  "an  act 
for  building  bridges  over  the  rivers  Passaic  and  Hackensack, 
and  for  other  purposes  therein  mentioned." 

By  the  first  section  thereof,  five  persons  were  appointed 
a  board  of  commissioners,  "fully  authorized  and  empow- 
ered to  put  into  execution  the  several  services  intended  by 
the  act."  By  the  third  and  fourth  sections,  the  commis- 
sioners were  authorized  to  erect,  or  cause  to  be  erected,  a 
bridge  over  the  Passaic  river  and  a  bridge  over  the  Hacken- 
sack river,  at  places  within  specified  limits,  that  might  seem 
to  them  "  most  suitable  and  convenient  for  the  purpose,  hav- 
ing due  regard  to  private  property  as  well  as  to  the  public 
good." 

The  10th  section  provides  that  the  bridges  so  to  be  erected 
shall  be  and  thereafter  remain  toll-bridges;  and  it  empowers 
the  commissioners  to  let  the  bridges  to  farm  to  other  persons 
to  be  erected  and  made,  and  afterwards  to  be  kept  in  good 
repair  and  maintained  by  the  toll  arising  therefrom  ;  and  it 
authorizes  the  commissioners  or  persons  farming  or  having 
care  of  the  bridges,  or  either  of  them,  to  demand  and  receive 
toll  within  such  fixed  rates  as  the  commissioners  should  ap- 
point and  direct  in  writing,  should  be  paid  from  all  persons 
passing  over  the  same. 

The  llth  and  12th  sections  provide  that  "in  order  the 
better  to  carry  into  execution  the  ends  proposed  by  the  act," 
the  commissioners  should  have  power,  at  their  discretion,  to 
contract  and  agree  with  any  person  or  persons,  who  would 
undertake  the  same  for  the  tolls,  or  for  so  many  years,  and 
upon  such  conditions  as  to  them  should  appear  expedient; 
and  when  such  a  contract  should  be  signed,  sealed,  and  de- 
livered, in  conformity  with  the  act,  that  it  should  be  so  bind- 
ing upon  the  state,  and  as  effective  to  all  intents  and  purposes 
whatsoever,  as  if  it  had  been  particularly  and  expressly  set 
forth  and  enacted  in  the  law. 

By  the  fifteenth  section,  it  is  enacted  "that  it  shall  not  be 


NOVEMBER  TERM,  1860.  543 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

lawful  for  any  person  or  persons  whatsoever  to  erect,  or 
cause  to  be  erected,  any  other  bridge  or  bridges  over  or 
across  the  said  river  Passaic,  at  any  place  or  places  be- 
tween the  mouth  of  the  said  Passaic  river  and  the  place 
where  the  brook  commonly  called  Second  river  now  empties 
itself  into  the  said  river  Passaic;  nor  shall  it  be  lawful  for 
any  person  or  persons  whatsoever  to  erect,  or  cause  to  be 
erected,  any  other  bridge  or  bridges  over  or  across  the  said 
river  Hackensack  at  any  place  or  places  between  the  mouth 
of  the  said  Hackensack  river  and  the  place  where  Kings- 
land's  creek  empties  and  discharges  its  waters  into  the  said 
river  Hackensack." 

Each  bridge  is  declared,  by  the  17th  section,  to  be  a 
public  highway  for  all  people  of  the  United  States  to  pass 
over,  on  the  payment  of  the  rates ;  and  it  is  therein  re- 
quired that,  after  a  bridge  should  be  erected,  good  attend- 
ance should  be  given  at  all  times  at  the  same;  and  that 
every  and  all  person  or  persons  should  be  suffered,  with 
their  goods  and  chattels,  to  pass  peaceably  and  quietly 
unmolested  over  the  bridge,  having  first  paid  the  pre- 
scribed toll. 

In  the  concluding  proviso  of  the  last  section  of  the  bill, 
it  is  enacted  that  the  bridges  to  be  built  by  virtue  of  the  act 
shall  continue  the  property  of  the  persons  therein  men- 
tioned, their  executors,  administrators,  or  assigns,  for  the 
terra  of  twenty-nine  years  from  the  time  of  passing  the  act, 
and  no  longer. 

The  commissioners,  under  the  provisions  contained  in 
the  llth  section  of  the  act,  which  were  merely  auxiliary 
to  the  main  design  thereof,  on  the  19th  of  February,  1793, 
made  and  executed  with  certain  individuals,  under  hands 
and  seals,  a  contract  for  constructing  and  maintaining  the 
two  bridges,  and  thereby  did  vest  in  the  said  farmers  or 
grantees  the  powers  and  privileges  which  were  conferred 
upon  the  commissioners  for  erecting  bridges  of  a  peculiar 
construction  and  description,  together  with  the  right  of 
taking  certain  fixed  tolls  thereon;  to  have  and  to  hold 


544      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

the  said  bridges,  with  their  respective  tolls  and  profits,  to 
them  and  their  representatives,  for  the  term  of  ninety-seven 
years. 

On  the  5th  of  November,  1794,  upon  the  petition  of  the 
said  farmers,  the  legislature  extended  the  time  for  completing 
the  bridges  for  the  term  of  six  months  beyond  the  limit  fixed 
in  the  original  act. 

By  an  act  passed  on  the  7th  of  March,  1797,  after  a 
bridge  had  been  erected  over  each  of  the  rivers,  the  grantees 
and  their  assigns  (called  stockholders  for  building  the 
bridges)  were  created  and  constituted  a  body  politic  and 
corporate,  for  the  term  that  they  were  entitled  to  hold  the 
said  bridges,  by  the  name  of  *'  The  Proprietors  of  the 
Bridges  over  the  rivers  Passaic  and  Hackensack  ; n  and 
the  stockholders  thereof  have  since  that  date  conducted 
their  business  in  the  cor|>orate  name.  The  charter  of  incor- 
poration created  no  additional  powers  or  privileges  which 
can  affect  the  questions  presented  on  the  bill  and  answer  in 
this  case. 

There  cannot  be  a  doubt,  upon  a  fair  reading  and  con- 
struction of  the  12th  section  of  the  act  of  1790,  but  that 
the  contract  or  lease  entered  into  by  the  commissioners  with 
the  parties  thereto  of  the  second  part  was  as  valid  and  bind- 
ing on  the  State  of  New  Jersey  as  if  it  had  been  particularly 
and  expressly  set  forth  in  the  law  itself,  and  been  enacted  as 
a  part  thereof. 

The  complainants  thus  becoming,  on  the  7th  of  March, 
1797,  and  thence  continuing  in  their  corporate  capacity, 
the  parties  beneficially  interested  in  and  entitled  to  the 
enjoyment  of  the  rights  and  franchises  granted  by  the  com- 
missioners to  Samuel  Ogden  and  others,  they  a»e  in  a  posi- 
tion to  hold  the  State  of  New  Jersey  to  an  observance  of 
the  contract  thus  made  by  the  commissioners  under  their 
authority,  and  to  claim  the  protection  of  the  constitution 
against  its  obligation  being  impaired  by  any  subsequent 
legislation. 

Before   proceeding    further   in    the   historical   statement, 


NOVEMBER  TERM,  1860.  545 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

it  is  important  to  ascertain  the  duties  prescribed  and  the 
powers,  rights  and  franchises  vested  by  the  act  of  1790,  and 
the  contract  made  in  conformity  with  its  provisions.  The 
paramount  object  of  the  act  clearly  was  the  advancement  of 
the  public  convenience  of  travel,  by  the  substitution  of 
bridges  for  ferries  over  the  two  rivers;  and  the  duty  im- 
posed by  the  commissioners  upon  their  grantees,  and  their 
representatives  and  successors,  was  the  erecting  and  maintain- 
ing a  bridge  of  peculiar  construction  over  each  of  those  rivers, 
suitable  for  the  accommodation  of  the  ordinary  means  of 
transit  between  Newark  and  Hudson's  river,  known  and  used 
or  contemplated  at  the  time. 

No  individuals  would  then  be  expected  to  undertake 
the  construction  of  such  public  facilities  at  their  own  ex- 
pense without  having  the  prospect  of  a  remunerating 
benefit;  and  hence,  as  an  inducement  for  wealthy  men 
to  undertake  the  needed  improvement,  the  legislature 
offered  to  capitalists  the  right  of  demanding  and  taking 
toll,  and  guaranteed  the  continuance  of  that  right  for  the 
period  of  ninety-nine  years;  and  they  contracted  to  pro- 
tect the  enjoyment  of  it  by  excluding,  in  express  terms, 
all  interference  within  fixed  distances  on  each  river.  The 
obligation  between  the  state  and  those  who  might  accept 
its  proffered  terms  was  mutual;  the  one,  to  provide  and 
maintain  specific  facilities  for  accommodating  the  public, 
at  all  times,  with  convenient  and  unmolested  passages 
over  each  of  the  rivers;  the  other,  in  consideration  of  the 
duty  assumed,  to  secure,  as  a  recompense  therefor,  a  toll 
from  persons  using  the  bridges,  and  to  protect  the  right 
of  exacting  it,  by  forbidding  all  erections  which  would  be 
calculated  prejudicially  to  draw  away  the  custom  from 
which  the  benefit  was  to  be  derived.  Grants  of  this  na- 
ture should  be  so  construed  as  to  save  the  holders  of  the 
estate  in  them  from  such  contiguous  competition  as  would 
operate  fraudulently  on  the  grant.  Such  is  the  doctrine  of 
the  common  law;  and  the  American  practice  of  exclud- 


516       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co.        , 

ing  by  legislation  all  interfererce  within  specified  distances 
is  in  affirmance  of  the  common  law  principle. 

There  are  three  distinct  features  in  this  act  for  building 
the  bridges  :  First,  a  grant  of  a  power  coupled  with  the 
imposition  of  an  expensive  duty — the  erection  of  the  two 
bridges.  Second,  a  grant  of  a  franchise — the  privilege  of 
exacting  toll  from  travelers.  Third,  a  guarantee  of  the 
unmolested  enjoyment  of  the  franchise  for  the  period  of 
ninety-nine  years,  by  providing  that  it  should  not  be  law- 
ful for  any  person  whatsoever  to  erect  any  other  bridge 
over  or  across  eitLier  of  the  said  rivers  within  fixed  limits. 
The  power  of  building  and  maintaining  the  bridges  is  not 
a  franchise,  nor  is  the  prohibition  of  other  bridges  a  fran- 
chise. The  only  franchise  in  the  grant  is  a  right  to  de- 
mand and  receive  toll  from  all  persons  who  should  pass 
over  the  bridges  required  to  be  erected  during  the  period 
that  they  were  to  continue  to  be  private  property.  None 
of  the  subsequent  acts  of  the  legislature,  respecting  the 
bridge  company  and  other  incorporated  companies,  have 
changed  the  nature  of  that  franchise  ;  nor  have  the  gran- 
tees from  the  commissioners,  or  their  assigns,  or  the  com- 
plainants themselves,  as  a  corporation,  by  acts  either  of 
omission  or  commission,  impaired  any  of  the  original 
privileges.  In, the  language  of  the  Chancellor,  which  ex- 
presses my  views  better  than  any  words  would  that  I  could 
select  for  myself,  I  am  prepared  to  say,  that  "I  entertain 
no  doubt  that  all  the  rights  and  privileges  conferred -by 
the  act  of  1790  passed  under  the  contract  of  the  commis- 
sioners to  their  lessees,  not  by  the  terms  of  the  contract, 
but  by  force  and  operation  of  the  law  itself;  that  they 
continued  in  the  company  under  their  act  of  incorpora- 
tion ;  and  that  they  are  now,  for  aught  that  appears  in 
this  case,  in  the  complainants  as  fully  and  effectually  as 
they  were  originally  conferred  by  the  act,  except  so  far  as 
they  have  been  parted  with  by  the  voluntary  act  of  the  cor- 
poration." 

lu    further   investigating   this   case,  it  is  important  that 


NOVEMBER  TERM,  1860.  547 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

we  preserve  a  clear  notion  of  the  distinction  between  the 
bridges,  which  are  permanent  and  substantial  objects  of  sense, 
and  the  right  to  take  toll,  which  is  a  contingency  springing 
out  of  the  bridges,  and  supported  by  them.  If  we  confound 
together  the  profits  produced  and  the  substantial  thing  which 
produces  them,  we  will  lose  the  proper  idea  of  franchises, 
and  may  fall  short  in  applying  to  this  case  the  law  which 
regulates  their  enjoyment. 

Having  shown  that,  by  a  valid  contract  with  the  state, 
which  cannot  constitutionally  be  impaired,  the  complainants 
have  the  right  of  maintaining  one  bridge  over  each  of  the 
rivers  Hackensack  and  Passaic  until  the  year  1889,  and  the 
exclusive  franchise  of  taking  such  tolls  thereon  as  are  fixed 
and  specified  in  their  grant  from  the  commissioners,  it  re- 
mains for  us  to  inquire  whether  the  bill  and  answer  show 
that  the  defendants  are  attempting  to  violate  any  of  the  vested 
rights  of  the  complainants. 

The  bill  states,  that  by  virtue  of  an  act  of  the  legisla- 
ture, approved  on  the  8th  of  March,  1860,  the  defendants 
are  about  constructing  a  railroad  from  Hoboken  to  the 
city  of  Newark;  and  that,  on  the  15th  of  May  last,  they 
determined  upon  a  part  of  the  route  and  location  of  their 
road,  and  have  deposited  a  survey  thereof  in  the  office  of 
the  secretary  of  state;  and  that  the  survey  describes  the 
route  as  crossing  the  Hackensack  river,  between  its  mouth 
and  the  place  where  Kingsland's  creek  empties  into  the  said 
river,  and  within  the  limits  designated  in  the  15th  section 
of  the  act  of  1790;  and  that,  without  obtaining  any  con- 
sent therefor  from  the  complainants,  or  paying  or  tender- 
ing to  them  any  compensation  or  damages  for  the  viola- 
tion of  the  contract,  the  defendants  have  commenced 
building  a  bridge  on  the  eastern  shore  of  the  Hackensack 
river;  and  as  the  Complainants  are  informed  and  believe, 
they  intend  to  proceed  and  complete  the  bridge  across  the 
river  on  the  located  route,  and  to  use  the  same,  and  per- 
mit it  to  be  used,  for  the  transportation  of  passengers  and 
merchandise,  as  a  part  of  their  railroad  from  Newark  to 


548      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

Hoboken.  Ifc  is  further  charged  in  the  bill,  that  the  large 
revenue  and  income  which  the  complainants  derive  from 
tolls  received  at  their  bridges  from  the  traveling  over 
them  between  Newark  and  Hoboken  will  be  much  les- 
sened by  such  travel  passing  over  the  bridge  which  the  de- 
fendants are  building,  and  that  they  will  be  greatly  in- 
jured by  the  bridge  and  the  erection  thereof.  The  com- 
plainants pray  for  an  injunction  to  restrain  the  defendants 
from  erecting  or  maintaining  the  said  bridge  or  any  other 
bridge,  across  the  Hackensack,  at  any  place  within  the 
limits  specified  in  the  act  of  1790,  until  the  21th  of  No- 
vember, 1889. 

The  defendants  admit,  in  their  answer,  that  they  are 
proceeding  to  locate  and  construct  a  railroad  from  Hobo- 
ken to  Newark;  and  they  justify  their  acts  under  powers 
conferred  upon  them  in  the  statute  of  March,  1860,  re- 
ferred to  by  the  complainants,  entitled,  "A  further  sup- 
plement to  an  act  to  incorporate  the  Hoboken  Land  and 
Improvement  Company,"  &c.  The  act  authorizes  and 
empowers  them  to  survey,  lay  out  and  construct,  main- 
tain and  operate,  a  railroad  from  some  point  at  or  near 
the  Hobokeu  ferry,  to  such  point  or  points  in  the  city  of 
Newark  as  they  may  deem  best  calculated  to  facilitate  the 
public  travel  to  said  ferry ;  with  power  to  erect  and  maintain 
the  necessary  viaducts  over  the  Hackensack  and  Passaic 
rivers,  and  to  acquire  by  contract,  if  the  same  can  be 
accomplished,  or  if  that  cannot  be  done,  then  to  take  and 
appropriate,  use  and  exercise  so  much  of  all  rights,  privi- 
leges, franchises,  property  and  bridges  or  viaducts,  or 
such  parts  thereof  as  may  be  necessary  to  enable  the  com- 
pany to  construct  said  railroad  and  branches;  first  making, 
or  causing  to  be  made,  compensation  in  the  following 
manner,  to  wit:  if  they  shall  fail  to  agree  with  the  person 
or  persons,  corporation  or  corporations,  claiming  to  own 
or  owning  any  right,  privilege,  franchise  or  property,  for 
the  exercise,  use,  appropriation  or  purchase  thereof,  or 
so  much  thereof  as  shall  be  .necessary  to  carry  out  the 


NOVEMBER  TERM,  1860.  549 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

objects  of  the  act,  and  to  construct,  maintain  and  operate 
the  railroad,  its  spurs  and  branches;  or  if,  from  any  other 
cause,  no  such  agreement  shall  be  made,  application  shall 
be  made  in  writing  by  the  company  to  the  Chief  Justice 
for  the  appointment  of  commissioners  to  examine  into  the 
matter.  The  report  of  the  commissioners  made  in  con- 
formity with  the  act,  or  in  case  of  an  appeal,  the  verdict 
of  the  jury  and  judgment  of  the  Supreme  Court  thereon, 
(the  appraisement,  assessment,  valuation  and  damages 
being  first  paid  or  deposited  in  court,)  shall  at  all  times  be 
considered  as  plenary  evidence  of  the  right  of  the  com- 
pany to  take,  have,  hold,  use,  occupy,  posses?,  exercise, 
appropriate  and  enjoy,  so  much  and  such  parts  of  said 
rights,  privileges,  franchises  and  property  so  necessary  to 
be  taken,  appropriated,  exercised  or  used,  and  so  com- 
pensated for.  The  defendants  also  admit  that  they  are 
driving  piles  on  the  eastern  shore  of  the  Hackensack  river 
on  the  located  route;  and  they  aver  that  they  intend  to 
proceed  and  complete  the  railroad  across  the  river  on  the 
route,  and  to  use  it,  and  permit  it  to  be  used,  for  the 
transportation  of  passengers  and  merchandise  over  the 
same,  as  a  part  of  their  railroad  from  Newark  to  Hoboken  ; 
but  they  deny  that  they  intend  to  use  it  for  any  other 
purpose,  or  to  allow  to  pass  thereon,  across  the  river,  any 
vehicles  or  carriages,  or  anything  for  the  conveyance  of 
goods,  merchandise  or  passengers,  which  were  known  or 
in  use  in  1790,  or  at  the  time  the  complainants  were  in- 
corporated ;  and  they  state  that  it  will  be  impossible  for 
any  vehicle  or  animal,  which  can  cross  upon  the  bridge 
of  the  complainants,  to  cross  the  river  upon  the  railroad 
of  the  defendants ;  and  that  no  foot-passenger  can  cross 
the  same  with  safety  ;  and  that  it  is  not  intended  for  the 
passage  of  foot-passengers;  but  that  it  will  be  so  con- 
structed as  to  have  iron  rails  laid  thereon,  upon  which 
engines,  propelled  by  steam,  with  railroad  cars,  may  be 
moved  ;  and  that  it  will  not  be  connected  with  the  shore 
on  either  side  of  the  river,  except  by  a  piece  of  timber 


550      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

under  each  rail ;  and  that  the  structure  must  necessarily 
be  made  in  such  manner  as  to  make  it  impossible  for  man  or 
beast  to  cross  the  river  upon  the  same,  except  in  the  rail- 
road cars;  and  that  they  intend  so  to  construct  it,  that  no 
vehicles  can  cross  it  except  locomotive  engines  and  railroad 
cars,  resting  and  necessarily  running  on  iron  rails,  and  which 
cannot  move  upon  the  bridge  over  the  Hackensack  which 
the  complainants  have  erected,  and  also  in  such  manner  that 
no  foot-passenger  can  cross  the  river  on  their  said  railroad 
viaduct. 

The  defendants  admit  that  the  complainants  have  not 
given  them  any  consent  for  the  erection  of  the  structure 
which  they  have  so  commenced;  and  also,  that  they  have 
not  paid  or  tendered  to  the  complainants  any  compensa- 
tion or  damages  for  the  pretended  violation  of  any  exclu- 
sive right  or  monopoly ;  but  they  charge  that  the  com- 
plainants have  no  such  franchise,  which  has  been  taken 
or  appropriated,  or  is  to  be  taken  or  appropriated,  that 
requires  the  defendants  to  pay  or  tender  compensation  or 
damages. 

The  question  raised  in  this  part  of  the  case'  is,  whether 
the  defendants  are  violating  any  of  the  complainants' 
rights,  without  first  obtaining  their  consent  or  making 
compensation,  by  commencing  and  continuing  to  erect,  on 
the  located  line  of  their  railroad  between  Newark  and 
Hoboken,  the  structure  or  viaduct  which  is  complained  of 
in  the  bill. 

The  language  of  the  15th  section  of  the  statute  of  1790 
declares  that  it  shall  not  be  lawful  for  any  person  whatso- 
ever to  erect  any  other  bridges  over  the  two  rivers  within 
specified  distances.  This  is  a  prohibition  upon  the  com- 
plainants as  well  as  upon  other  parties.  They  were  only 
authorized  to  erect  and  maintain  the  bridges  then  con- 
templated in  the  act.  They  could  not  have  constructed 
a  bridge  over  either  river  for  the  use  of  the  New  Jersey 
Railroad  Company  or  for  any  other  company,  nor  could 
they  grant  a  right  to  any  person  or  corporation  to  erect  a 


NOVEMBER  TERM,  I860.  551 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

bridge.  That  power  remained  in  the  sovereign  people,  re- 
strained in  its  exercise  to  legislative  authorizations  only  of 
such  structures  as  will  not  be  impaired  by  the  franchise 
granted  in  the  act  of  1790,  and  now  held  by  the  complain- 
ants. This  restraint  upon  the  legislative  power  should  net 
be  so  construed  as  to  secure  to  the  complainants  greater  im- 
munity in  the  enjoyment  of  their  franchi.se  and  property  than 
is  possessed  by  other  parties  in  the  state,  or  to  protect  them 
from  the  effects  of  a  constitutional  exercise  of  the  power  of 
eminent  domain. 

If  the  terms  of  the  grant  are  to  be  ascertained  only  by  the 
•words,  a  structure  over  either  river,  in  the  form  of  a  bridge, 
for  sustaining  water-pipes,  or  for  the  passage  of  a  canal,  with 
a  towing-path,  could  not  be  authorized  by  law.  The  legis- 
lature did  not  contemplate  such  a  construction  of  their  lan- 
guage. It  is  inconsistent  with  the  subject  they  were  dealing 
with,  and  unnecessary  for  effecting  the  special  objects  of  their 
grant.  Seeing,  then,  that  the  complainants  have  not  the 
monopoly  of  building  bridges  over  the  two  rivers,  it  becomes 
important  for  us  to  ascertain  whether  they  have  the  right, 
nndtr  their  grant,  to  adapt  their  present  bridge  over  the 
Hackensack  river  to  ordinary  railroad  travel,  by  laying  down 
iron  rails,  and  providing  upon  it  such  other  appliances  as  are 
necessary  for  permitting  locomotive  engines. and  trains  of 
cars  to  pass  freely  and  unmolested  over  the  same.  Such 
could  not  have  been  within  the  contemplation  of  the  commis- 
sioners who  acted  in  behalf  of  the  legislature,  when  they  re- 
quired that  the  bridges  should  be  constructed  upon  the  prin- 
ciples of  the  bridge  over  the  Charles  river,  between  Boston 
and  Charlestown,  and  of  the  width  of  thirty-two  feet. 
Nor  was  such  construction  given  to  the  grant  by  the  legis- 
lature in  1832,  in  a  proviso  to  the  10th  section  of  the  act 
incorporating  the  New  Jersey  Railroad  and  Transporta- 
tion Company.  After  empowering  that  railroad  company 
to  purchase  the  turnpike  roads  and  bridges  on  their  route, 
they  provide  for  continuing  and  protecting  the  use  of 


552       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

them  to  the  public,  by  enacting  that  the  Newark  turnpike 
and  the  bridges  over  the  rivers  Hackensack,  Passaic,  and 
Raritan,  and  road,  shall  be  preserved  without  obstruction,  as 
public  roads,  as  theretofore,  subject  to  the  provisions  of  their 
several  charters. 

But,  admitting  that  the  complainants  have  the  right  to 
accommodate  their  bridges  to  the  exigencies  of  railroad 
travel,  are  they  required  so  to  do?  Certainly  not,  unless 
their  franchise  of  taking  toll  extends  to  that  mode  of  travel- 
ing. 

In  6  Manning  &  Granger,  p.  229,  in  the  case  of  The  Ports- 
mouth Bridge  Company,  where  a  question  arose  as  to  what 
was  tollable  property,  Tindall,  C.  J.,  said,  "  "Whoever  seeks 
to  impose  tolls,  must  support  his  claim  by  plain  words." 
None  of  the  subjects  of  toll  contained  in  the  rates  which  are 
incorporated  in  the  contract  made  by  the  commissioners,  will 
include  a  locomotive  engine  or  a  train  of  passenger  or  freight 
cars.  Each  of  the  travelers  inside  the  cars  cannot  be  rated 
as  a  single  person,  because  that  item  in  the  rates  fixed  by  the 
commissioners,  manifestly  was  intended  for  foot  passengers  ; 
nor  could  a  tariff  be  fixed  upon  the  motive  power,  and  the 
cars  and  passengers  in  them,  under  the  concluding  clause  of 
"other  articles  not  enumerated"  which  follows  in  the  section 
after  calves,  sheep,  and  hogs.  If,  then,  we  seek  to  settle  the 
true  construction  of  the  clause  of  exclusion,  by  applying 
to  it  the  ordinary  rules  of  interpretation,  we  find  that  the 
context,  the  subject  of  the  grant,  and  the  spirit  and  reason  of 
the  law,  leads  us  to  the  conclusion  that  the  legislature,  iu 
essaying  to  provide  for  a  pressing  public  want,  by  securing 
the  erection  of  bridges  upon  a  great  line  of  highway,  also 
insured  to  the  lessees  or  proprietors  thereof,  by  granting  to 
them  the  franchise  of  toll,  all  the  profits  which  could  be 
derived  from  the  transit  of  persons  and  property  across  the 
said  rivers,  over  bridges  to  be  used  as  ordinary  public  high- 
ways, within  the  prescribed  limits,  and  by  methods  then 
known  and  understood. 


NOVEMBER  TERM,  1860.  553 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

As  has  already  been  shown,  the  franchise  of  the  com- 
plainants is  the  privilege  of  exacting  toll  for  crossing  the 
rivers  and  bridges.  No  such  franchise  is  granted,  to  the 
defendants  in  their  supplement ;  nor  do  they,  in  construct- 
ing their  railroad,  require  the  appropriation,  use  or  exer- 
cise of  this  franchise  of  the  complainants,  or  of  any  part 
thereof.  Wlien  the  viaduct  shall  be  completed  it  will  be- 
come a  part  of  a  continuous  line  of  railroad  from  Newark 
to  Hoboken,  having  no  greater  productive  value  than  so 
many  lineal  feet  of  the  track  constructed  on  the  salt  mead- 
ows. The  defendants,  in  their  answer,  say  that  it  is  not 
to  be  a  passage  whereby  parties  may  escape  paying  toll 
on  the  complainants'  bridge.  Grant  that  the  New  Jersey 
Railroad  and  Transportation  Company,  by  an  agreement 
with  the  complainants,  were  permitted  by  them,  for  valu- 
able considerations,  to  erect  their  railroad  bridges  over 
the  rivers  Passaic  and  Hackensack,  and  that  they  were  in- 
duced to  negotiate  because  they  supposed  that  the  struc- 
ture and  use  of  their  road  and  bridges  would  infringe 
upon  the  franchise  of  the  complainants,  it  is  a  non-sequitur 
that  the  language  of  the  act  of  1860  put  the  defendants 
even  in  a  doubtful  position  as  to  their  obligation  to  com- 
pensate. 

In  1832,  the  practical  working  of  railroads  was  very 
little  known  in  this  country  ;  and  from  the  provisions  of 
the  8th  section  of  the  charter  of  the  New  Jersey  company, 
it  is  manifest  that  the  legislature  contemplated  that  wa- 
gons, carriages  and  other  known  vehicles  with  adaptation 
to  railway  tracks,  would  be  passed  over  the  road  by  per- 
sons who  had  been  accustomed  to  use  the  bridges  and 
road  of  the  complainants.  The  railroad  company  are 
therein  authorized  to  demand  tolls  and  rates  for  the  pas- 
sage of  all  carriages  upon  their  railroad,  and  are  directed 
to  cause  their  rates  of  tolls  to  be  inscribed  or  painted  on 
some  conspicuous  place  at  each  gate  where  toll  should  be 
required  to  be  paid.  And  it  is  provided  that  no  farmer 
belonging  to  the  state  shall  be  required  to  pay  any  toll  for 


554      COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

the  transportation  of  the  produce  of  his  farm  to  market 
over  the  railroad  in  his  own  carriage,  weighing  not  more 
than  one  ton,  when  the  weight  of  such  produce  shall  not 
exceed  one  thousand  pounds,  but  the  said  farmer  may  be 
charged  toll  as  for  an  empty  carriage.  It  is  not  difficult 
for  us  to  suppose  that  a  grave  doubt  may  then  have  been 
raised  as  to  the  probable  direct  interference  in  the  use  of 
the  railroad  with  the  exclusive  franchise  of  the  complain- 
ants, and  that  the  railroad  company  might  naturally  have 
supposed  that  their  interest  would  be  promoted  by  secur- 
ing the  bridge  company  stock.  But  it  is  clear  that,  in 
buying  permission  to  erect  bridges  and  in  obtaining  the  con- 
trol of  the  stock  in  the  company,  they  did  not  acquire  a  right 
to  engraft  the  bridge  franchise  into  the  charter  of  their  rail- 
road company,  so  as  to  claim,  by  themselves  or  through  the 
bridge  company,  that  no  other  railroad  should  be  constructed 
over  the  rivers  within  the  limits  prescribed  in  the  act  of 
1790,  without  their  permission. 

In  the  supplement,  under  which  the  defendants  are 
operating,  there  is  no  recognition  of  a  right  in  any  per- 
sons but  the  defendants  to  place  and  ran  cars  upon  the 
road  which  they  are  building,  and  to  demand  fare  for  the 
trans|x>rtation  of  passengers  and  merchandise  thereon  ;  and 
no  authority  is  granted  to  the  defendants  to  charge  toll  for 
the  passage  of  carriages  of  other  parties  over  their  road  and 
viaducts. 

Seeing,  then,  that  the  defendants  insist  that  they  do  not 
require  in  the  construction  of  their  railroad,  by  a  viaduct 
over  the  river  Hackensack,  any  parts  of  the  rights,  privi- 
leges, franchises,  property,  bridges  or  viaducts  of  the  com- 
plainants, there  can  be  no  ground  for  an  injunction,  un- 
less it  is  found  in  the  requirement  that  they  shall  agree 
for  or  condemn  rights  and  franchises  claimed  to  be  owned 
by  other  parties.  The  complainants  insist  that  the  reser- 
vation in  their  favor,  at  the  close  of  the  first  section  of  the 
supplement  to  the  defendants'  charter,  created  the  exclu- 
sive privilege  BOW  claimed,  if  none  existed  before  that 


NOVEMBER  TERM,  1860.  555 

Proprietors  of  Bridges  v.  Hoboken  Land"  Co. 

time,  and  that  it  contains  a  legislative  recognition  of  tlieir 
right  to  compensation  ;  and  that,  by  accepting  the  act,  the 
defendants  have  debarred  themselves  from  questioning 
the  right,  and  that  they  were  bound  to  apply,  under  their 
fifth  section,  for  the  appointment  of  commissioners 
before  they  could  lawfully  proceed  to  construct  their  via- 
duct. It  would  be  a  forced  interpretation  of  the  language 
of  the  act  to  say  that  any  claimant  of  an  imaginary  fran- 
chise or  right  can  stop  the  construction  of  the  railroad 
until  commissioners  shall  decide  upon  the  existence  of  the 
right;  and  if  determined  by  them  to  be  art  entity,  then  until 
they  shall  settle  how  much  of  it  is  required  by  the  defendants, 
and  what  compensation  shall  be  paid  by  them  for  its  exercise, 
although  they  set  up  that  they  do  not  wish  to  appropriate  it, 
or  any  part  of  it. 

A  right  must  have  an  existence  before  any  person  or 
corporation  can  own  or  claim  to  own  it.  If  the  defend- 
ants, in  the  construction  of  their  railroad,  had  deemed  it 
necessary  to  appropriate  and  exercise  any  admitted  right, 
privilege  or  franchise  that  the  complainants  own  or  claim  t<» 
own,  and  an  agreement  for  its  use  could  not  be  made,  it  was 
their  duty  to  apply  for  the  ap|>ointment  of  commissioners; 
but  if  they  do  not  propose  to  interfere  with  the  existing 
rights  or  franchises  of  any  person  or  corporation,  there  is 
nothing  for  them  to  negotiate  for  with  the  complainants  pre- 
liminary to  applying  for  a  commission;  and  hence  there 
would  be  nothing  for  commissioners  or  a  jury,  in  the  event 
of  an  appeal,  to  act  upon. 

This  view  of  the  supplement  of  1860  will  not  injuriously 
afft-ct  the  complainants  in  the  enjoyment  of  their  acknowl- 
edged or  existing  rights.  It  was  afgued  correctly  by  their 
counsel,  that  if  they  should  waive  the  invocation  of  legal 
means  to  protect  their  franchise,  either  by  giving  their 
consent  in  writing  to  its  infringement  or  by  waiving  a 
bill  to  enjoin,  they  would  not  thereby  waive  their  right 
of  compensation.  By  parity  of  reasoning,  if,  as  the  work 
of  construction  progresses,  or  after  its  completion,  it  shall 


556       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

appear  that  the  defendants  have  interfered  with  or  appropri- 
ated any  right,  privilege  or  franchise  of  the  complainants,  an 
action  for  compensation  in  damages  can  be  instituted  and 
maintained,  and  an  injunction  can  be  applied  for  to  restrain 
them  from  continuing  the  unlawful  appropriation  of  the  com- 
plainants' privileges. 

But  can  it  be  successfully  argued  that, 'in  1860,  the  legis- 
lature intended  to  confer  new  privileges  upon  the  complain- 
ants? If  such  was  their  design,  it  could  have  been  expressed 
in  clear  and  positive  terms. 

Public  grants  in  derogation  of  public  right?,  abridging  the 
exercise  of  governmental  powers  and  duties,  are  construed 
most  strictly  against  the  grantees,  and  nothing  should  be 
taken  by  implication  against  the  state.  It  seems  clear  to  me 
that  the  complainants  must  in  this  case  rely  for  compensation 
upon  their  rights  as  they  existed  before  the  law  of  1860  was 
passed. 

Inasmuch  as  the  prohibition  of  any  other  bridges  within 
specified  distances,  on  each  river,  was  introduced  into  the 
act  of  1790  to  protect  the  proprietors  of  the  two  bridges 
in  the  enjoyment  of  their  franchise  of  demanding  and  re- 
ceiving tolls;  and  as  the  viaduct  or  bridge  which  the  defend- 
ants are  constructing  is  not  intended  either  for  a  toll-bridge 
or  a  free  bridge  ;  and  as  the  defendants  design  to  make  the 
structure  complained  of  a  part  of  the  continuous  line  of 
railroad  from  Hoboken  to  Newark  to  be  adapted  to  no 
modes  of  transit  except  by  the  use  of  railroad  cars  and  loco- 
motive engines,  the  legislative  authority  given  to  the  respond- 
ents to  construct  a  railroad  with  viaducts  over  the  rivers 
cannot  be  held  to  be  a  violation  of  the  contract  existing 
between  the  state  and  the  grantees  from  their  commissioners 
or  in  fraud  of  that  grant. 

Suppose  that  the  restriction  in  the  act  of  1790  had  been, 
that  it  should  not  be  lawful  for  any  person  or  persons 
whatsoever  to  erect  or  cause  to  be  erected  any  free  bridge 
or  any  other  toll-bridge  over  or  across  either  of  the  rivers 
within  the  distances  specified,  would  the  structure  which 


NOVEMBER   TERM,  1860.  557 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

the  defendants  contemplate  to  erect  over  the  rive.r  Hacken- 
sack  come  within  the  interdiction,  either  by  the  words  or  the 
spirit  of  the  protection  ?  If  not,  how  can  it  be  held  to  be  a 
violation  of  the  franchise,  which  is  protected  by  the  exclusion 
of  any  other  bridge  or  bridges,  or  the  law  which  authorizes 
it  to  be  a  fraud  upon  that  grant  ?  Can  the  language  em- 
ployed in  the  15th  section  receive  a  broader  construction  than 
the  prohibition  of  all  free  bridges  and  all  toll-bridges  would  ? 
The  answer  shows  that  the  viaduct  complained  of  will  be 
neither  of  those  structures. 

Although  the  cases  examined  by  the  Chancellor,  and  again 
cited  on  the  argument  before  this  court,  may  not  be  entitled 
to  the  weight  of  express  authorities,  still  they  show  that  the 
inclination  of  the  courts  wherein  they  arose  was  clearly  in 
favor  of  the  view  which  I  have  enunciated  of  the  extent 
of  franchises  of  like  character. 

In  the  case  of  The  Utica  and  Schenectady  Railroad  Com- 
pany, reported  in  6  Paige  554,  Chancellor  Wai  worth  said  : 
"  If  the  grant  had  in  terms  given  to  the  corporation  the  ex- 
clusive right  of  erecting  a  toll-bridge  across  the  river  at 
Schenectady,  this  subsequent  grant  to  the  railroad  company 
to  cross  the  river  with  their  railroad  from  Schenectady  to 
Utica,  and  to  transport  passengers  thereon  in  the  ordinary 
course  of  their  business  in  the  conveyance  of  travelers  from 
one  place  to  another,  would  not  have  been  an  infringement 
of  the  privileges  conferred  by  such  prior  grant,  as  a  railroad 
bridge  would  not  be  a  toll-bridge  within  the  intent  and 
meaning  of  the  first  grant. 

The  Supreme  Court  of  North  Carolina,  in  the  case  of 
McRae  v.  The  Wilmington  and  Raleigh  Railroad  Co.,  2  Jones 
186,  held  that  a  law  authorizing  the  extension  of  a  rail- 
road across  the  northeast  branch  of  Cape  Fear  river  was 
not  a  violation  of  the  franchise  granted  to  an  individual 
of  building  and  maintaining  a  bridge  over  the  river,  and 
taking  tolls  thereon,  although  the  grant  provides  that  it 
should  not  be  lawful  for  any  person  whatever  to  build  any 

VOL.  ii.  2  M 


558       COURT  OF  ERRORS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

bridge  over  the  said  river.  Other  cases  are  to  the  same 
effect. 

The  adjudication  in  the  case  of  The  Enfield  Toll-Bridge 
Company  v.  The  Hartford  and  New  Haven  Railroad  Co.,  re- 
ported in  17  Connecticut,  was  relied  on  by  the  complainants 
as  abundantly  sustaining  a  contrary  doctrine.  The  first  argu- 
ment of  the  case  took  place  before  the  Supreme  Court  of 
Errors  of  the  State  of  Connecticut,  composed  of  the  Chief 
Justice  and  four  associate  judges.  In  the  opinion  delivered, 
the  Chief  Justice  took  the  broad  ground  that  a  prohibition 
in  the  law  establishing  the  Enfield  Bridge  Company,  similar 
to  that  contained  in  our  act  of  1790,  was  sufficient  to  prevent 
the  railroad  company  from  erecting  a  bridge  within  the  pre- 
scribed limits,  to  be  used  for  the  sole  and  exclusive  accom- 
modation of  the  travel  on  a  railroad. 

In  examining  the  question,  the  learned  Chief  Justice 
argued  that  it  is  not  the  name  "bridge"  which  is  sufficient 
to  designate  the  structure,  but  its  object  and  intent  should 
be  considered.  At  the  close  of  the  report  of  the  case,  it 
is  said  that  the  other  judges  ultimately  concurred  in  the 
opinion,  though  Judge  Hinman,  at  first,  thought  that  the 
structure  of  the  defendants  was  not  "a  bridge"  within  the 
meaning  of  the  plaintiffs'  charter.  After  this  decision  was 
made,  and  the  Supreme  Court  were  advised  to  grant  an  in- 
junction, the  plaintiffs'  damages  were  duly  assessed,  by  com- 
missioners, at  $350,  and  the  money  was  tendered  to  and  re- 
fused by  them. 

The  case  subsequently,  in  the  following  year,  1846,  came 
again  before  the  same  court,  the  plaintiff's  then  insisting  that 
their  rights  extended  beyond  the  bridge  franchise,  and  that 
they  had  a  contract  with  the  state  which  had  been  impaired 
by  legislation. 

After  full  arguments  were  made,  Judge  Church  read  an 
opinion,  which  was  fully  concurred  in  by  Judges  White 
and  Hinman.  They  held  that  the  property  and  franchises 
of  the  bridge  company,  and  the  charter  which  created 


NOVEMBER  TERM,  I860.  550 

Proprietors  of  Bridges  T.  Hoboken  Land  Co. 

them,  are  essentially  the  same,  and  were  both  subject  to  the 
exercise  of  the  power  of  eminent  domain  equally  with  the 
property  of  the  private  citizens  of  the  state.  They  also  held, 
that  as  all  powers,  privileges  and  immunities  necessary  to 
carry  into  effect  the  purposes  and  objects  of  their  charter 
were  given  to  the  railroad  company,  including  iu  terms  an 
authority  to  erect  a  bridge,  if  necessary,  across  the  Connecti- 
cut river  for  the  sole  accommodation  of  the  travel  on  the 
railroad,  that  they  had  a  right,  (subject  to  making  compensa- 
tion for  any  franchise  they  might  impair,)  to  construct  their 
railroad  over  the  river  within  the  protected  limits,  although 
the  19th  section  of  the  charter  of  the  Hartford  and  Spring- 
field Railroad  Company,  which  was  extended  to  the  charter 
of  the  defendants,  provides  "that  nothing  therein  contained 
shall  be  construed  to  prejudice  or  impair  any  of  the  rights 
now  vested  in  the  Enfield  Bridge  Company."  The  Chief 
Justice  and  Judge  Storrs  dissented  as  to  the  construction  of 
the  19th  section,  and  held  that  it  was  intended,  in  connection 
with  the  other  provisions  of  the  charter,  to  guard  against  any 
interference  with  the  rights  of  the  bridge  company  within 
the  protected  limits. 

I  have  cited  from  the  case  thus  fully  for  the  purpose  of 
showing  that  the  learned  Chief  Justice  held  very  rigid  no- 
tions upon  the  subject  of  old  grants  to  corporations,  and  was 
led  to  consider  them  as  more  sacred  and  inviolable  than  the 
private  property  and  rights  of  individuals. 

After  carefully  considering  that  case,  I  am  not  convinced 
that  the  reasoning  of  the  Chief  Justice,  in  his  written  opinion, 
or  the  conclusions  which  he  reached,  should  influence  our 
decision. 

The  charter  of  the  Boston  and  Lowell  railroad  corpo- 
ration, which  was  adjudicated  on  in  the  case  cited  from  2 
Gray's  Reports,  presented  a  different  question.  The  act 
was  passed  in  1830,  and  contemplating  that  the  railroad 
would  be  used  by  the  public  with  their  own  vehicles,  the 
legislature  provided  for  the  erection  of  toll-houses,  the 


560      COURT  OF  ERROKS  AND  APPEALS. 

Proprietors  of  Bridges  v.  Hoboken  Land  Co. 

establishment  of  gates,  and  the  appointment  of  toll-gath- 
erers. 

In  the  12th  section,  it  is  provided,  that  no  other  railroad 
than  the  one  thereby  granted  should,  within  thirty  years 
from  and  after  the  passing  of  the  act,  be  authorized  to  be 
made,  leading  from  Boston,  Charlestown  or  Cambridge  to 
Lowell,  or  from  either  of  those  three  places,  to  any  place 
within  five  miles  of  the  northern  termination  of  the  road 
thereby  authorized  to  be  made. 

The  adjudication  of  the  case  established  that  the  stipula- 
tion in  their  charter,  that  no  other  railroad  within  a  limited 
time,  should  be  authorized  to  be  built,  was  a  part  of  the  right 
of  the  Boston  and  Lowell  railroad  corporation,  which  could 
not  be  invaded  except  by  the  legislature,  in  their  exercise  of 
the  right  of  eminent  domain  ;  and  that  a  combination  by 
three  distinct  railroad  companies  subsequently  chartered  for 
other  purposes,  so  that  they  formed  a  continuous  railroad  line 
from  Lowell  to  Boston,  was  an  infringement  of  the  exclusive 
right,  and  furnished  a  proper  case  for  an  injunction.  This 
case  is  no  authority  upon  the  question  as  presented  in  the 
case  now  before  this  court. 

My  opinion  is  clear  that  the  Chancellor  took  the  correct 
view  of  the  case,  and  that  his  decree  dismissing  the  bill  of 
complaint  should  be  affirmed. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote ; 

For  affirmance — Judges  COMBS,  CLAWSON,  HAINES,  OG- 
DEN,  SWAIN,  VKEDENBUBGH. 

For  reversal— Judges  CORNELISON,  VAN  DYKE. 
CITED  in  Atl'y-Geril  v.  Del  and  Bound  Brook  R.  E.  Co.,  12  C.  E.  Gr.  19. 


NOVEMBER  TERM,  1860.  561 

McFarland  v.  Orange  and  Newark  Horse  Railroad  Co. 


Between  OWEN  MCFARLAND,  appellant,  and  THE  ORANGE 
AND  NEWARK  HORSE  RAILROAD  COMPANY,  respond- 
ents. 

Vroom  and  Attorney- General,  for  appellants. 
Hayes  and  Zabriskie,  for  respondents. 

The  decree  of  the  Chancellor  was  affirmed  by  the  follow- 
ing vote : 

For  affirmance — Judges  CORNELISON,  HAINES,  RISLEY, 
VAN  DYKE,  VREDENBURGH,  WOOD,  CLAWSON,  OODEN, 
SWAIN,  KENNEDY,  WHELPLEY. 

For  reversal — COMBS. 


INDEX. 


ADMINISTRATORS. 
See  EXECUTORS. 

AGREEMENT. 

1.  The  law  implies  no  promise  to  pay 
for  services  rendered  by  members 
of  a  family  to  each  other,  whether 
by  children,  parents,  or  other  rel- 
atives. 

2.  The  rule  is  well  settled,  that  a 
mere  moral  obligation  constitutes 
no  legal  consideration  for  a  con- 
tract. 

3.  A  widow  and  her  son  were  living 
together;    the   former   performed 
certain   services,  such  as  washing 
and  ironing,  &c. ;  the  latter  con- 
tributed somewhat  to  the  support 
of  the  family.     The  mother  lent 
to  the  son,  from  time  to  time,  small 
sums  of  money.     The  son,  having 
become   embarrassed,  executed  a 
mortgage  to  his  mother,  the  con- 
sideration being  the  services  and 
the  loans  aforesaid. 

4.  Held,  that,  as  against  creditors,  the 
loans  constituted  a  valid  consider- 
ation— contra  as   to  the    services. 
Updyke  v.  Titus,  151 

6.  A  father  having  conveyed  his  en- 
tire estate  to  his  children  upon 
their  stipulating  for  the  support 
of  their  parents,  a  specific  per- 


formance decreed. 
ham, 


Chubb  v.  Peek- 
207 


6.  It  is  a  well-settled  rule,  that  where 
services  are  rendered  gratuitously 
or  without  any  view  to  compensa- 
tion, but  in  the  hope  of  receiving] 

563 


a  legacy  or  devise  from  the  person 
to  whom  the  services  are  rendered, 
the  person  rendering  the  services 
can  recover  no  compensation  there- 
for. 

7.  A  father  made  a  verbal  agreement 
with  his  youngest  son,  that  if  he 
would  remain  and  work  his  farm 
and  support  and  maintain  him  dur- 
ing his  life,  that  upon  his  death  the 
son  should  have  the  farm.  The  son 
remained  and  worked  the  farm,  for 
upwards  of  fifteen  years,  to  the 
satisfaction  of  the  father,  who  then 
becoming  displeased  with  him,  con- 
veyed the  farm  to  his  two  other 
sons,  in  consideration  of  mainte- 
nance for  life.  Held — 

J.  First,  that  as  it  appeared  that  the 
complainant's  services  were  ren- 
dered to  his  father  not  gratuitously, 
but  upon  a  distinct  understanding 
between  himself  and  his  father 
that  he  should  be  compensated  for 
his  services,  and  that  the  material 
part  of  that  agreement  was,  that 
upon  his  father's  death,  provided 
he  continued  to  serve  and  provide 
for  him  during  his  life,  he  should 
receive  the  homestead  farm,  that 
the  agreement  thus  proved  was 
valid  in  law. 

9.  Second,  that  part  performance  took 
the  case  out  of  the  operation  of 
the  statute  of  frauds. 


10.  The  bill  in  this  case  permitted  to 
be  amended  after  final  hearing,  so 
as  to  make  the  contract  alleged 
agree  with  that  proved.  Daviton 
v.  Davi&on,  246 


£e«  SURETY. 


564 


INDEX. 


AFFIDAVITS. 


See  PRACTICE. 


ALIMONY. 

See  PRACTICE,  5. 
DOWER,  2. 


AMENDMENT. 

•See  PRACTICE,  11. 

ANNUITY. 

When  an  annuity  is  charged  on  real 
estate,  the  rule  is  that  it  does  not 
commence  until  the  devisee  of  such 
estate  is  entitled  to  the  possession 
thereof.  Hayes  v.  Whitall,  241 

ANSWER. 
See  PLEADINGS. 

ASSISTANCE,  WRIT  OF. 
See  PRACTICE,  29,  34. 

APPEAL. 

1.  If  the  party  appealing  from   the 
final  decree  of  this  court  file  his 
appeal  within  ten  days  after  such 
decree,  with  the  clerk  of  this  court, 
it  will  prevent  issuing  process  on 
such  decree  without  the  order  of 
this  court  or  of  the  Court  of  Ap- 
peals for  that  purpose. 

2.  If  the  appeal  be  not  filed  within 
the  time  above  limited,  the  motion 
to  stay  execution  is  addressed  to  the 
discretion  of  the  court,  and  will  be 
granted    only    upon    good    cause 
shown.     Schenck  v.  Conover,        31 

3.  A  defendant  having  a  beneficial 
interest  may  exhibit  a  bill  of  re- 
vivor  for  the  purpose  of  appealing 
from  decree.  Peer  v.  Cockcrow,  136 


BAKON  AND  FEME. 

1.  At  common  law,  the  husband  ig 
entitled   not  only  to  all  the  per- 
sonal    property    which   the   wife 
owns  at  the  time  of  her  marriage, 
but  to  all  that  she  acquires  by  her 
skill  or  labor  during  the  coverture. 

2.  Though  a  gift  from  the  husband  to 
the  wife  is  void  at  law,  it  will  be 
protected  in  equity  as  against  the 
husband,  and  if  made   by  virtue 
of  an  ante-nuptial  agreement,  as 
against  his  creditors  also. 

3.  A  married  woman, purchasing  land 
with  the  knowledge  and  approval 
of  her   husband,    the   title   being 
taken  in  the  name  of  the  husband, 
and  he  executing  a  mortgage  there- 
on for  the  cost  of  a  dwelling  sub- 
sequently erected,  will   acquire  no 
equitable  title  to  the  premises,  as 
against  the  husband's  creditors,  on 
the  ground  that  she   mainly  con- 
tributed to  paying  oft'  the  mort- 
gage from  the  avails  of  her  labor 
during     coverture.     Skillman     v. 
Skillman,  404 

4.  Where  husband  and  wife  are  made 
defendants,  the  complainant  is  en- 
titled to  a  joint  answer.     Collard 
v.  Smith,  43 


BILL. 

See  PLEADINGS. 

BRIDGES. 

See  INJUNCTION,  3. 
CORPORATION,  3,  5. 

BUILDING   ASSOCIATION. 
See  CORPORATION,  12. 

CHARITABLE  USE. 
See  MORTGAGE,  3. 


\ 


INDEX. 


565 


CHATTEL  MORTGAGE. 

A  chattel  mortgage  is  valid  under 
the  laws  of  this  state.  "Chapman 
v.  Hunt,  '  370 


CONSTITUTIONAL  LAW. 

l.The  clause  in  the  charter  of  the 
proprietors  of  the  bridges  over  the 
rivers  Passaic  and  Hackensack, 
which  declares  that  it  shall  not  be 
lawful  for  any  person  or  persons 
whatsoever  to  erect,  or  cause  to  be 
erected,  any  other  bridge  or  bridges 
over  or  across  the  said  river,  con- 
stitutes a  contract  on  the  part  of 
the  state,  which  cannot  constitu- 
tionally be  annulled  or  abrogated. 

2.  It  is  immaterial  whether  the  in- 
Btrument    by    which    the    public 
faith  is  pledged  is  in  its  terms  a 
contract,  or  in  form  a  mere  legis- 
lative enactment;  in  either  event, 
it  is  equally  a  contract  within  the 
meaning  of  the  constitution. 

3.  The  proprietors    of   the    bridges 
over  the  rivers  Passaic  and  Hack- 
ensack have,  by  contract  with  the 
state,   the  exclusive  franchise  of 
maintaining  said  bridges,  and  tak- 
ing tolls   thereon  ;  and  such  con- 
tract is  within  the  protection   of 
the  constitution,   which    declares 
that  no  law  shall  be  passed  impair- 
ing the  obligation  of  contracts. 

4.  But  the  construction  of  a  viaduct 
over  said  river  for  a  railway,  to  be 
used  exclusively  for  the  passage  of 
locomotives,  engines,  and  railroad 
cars,  is  not  a  bridge  within  the 
prohibition  of  said  charter. 

6.  Public  grants  are  to  be  construed 
strictly.  Bridge  Co.  v.  Hoboken 
Land  Improvement  Co.,  81,  503 

See  CORPORATION,  3. 

The  act  of  20th  March,  1860,  giving 
the  mother  the  custody  of  her  chil- 
dren under  the  age  of  seven,  is  not 
unconstitutional.  Bennet  v.  Ben- 
net,  114 


CONSIDERATION. 
See  AGREEMENT,  1. 


CONVEYANCE. 
See  DEED. 


CORPORATION. 

1.  The  charter  of  the  defendants  con- 
tained the  following  clause:  "The 
president    and   directors  of    said 
company  be  and  they  are  hereby 
authorized  and  invested  with  all 
the  rights  and   powers   necessary 
and  expedient  to  survey,  lay  out, 
and  construct  a  railroad  from  some 
suitable  point  in  the  township  of 
Orange,  in  the  county  of  Essex,  to 
some    suitable    point    in    Orange 
street,  or  some  street  north  of  said 
street,  or  south  of  Market  street, 
in  the  city  of  Newark." 

Held,  that  this  enactment  relates  not 
to  the  route,  but  to  the  termination 
of  the  road,  and  that  thereby  the 
road  of  the  company  was  not  ex- 
cluded from  being  located  in  or 
through  Market  street.  McFarland 
v.  The  Orange  and  Newark  Horse 
Car  Railroad  Company,  17 

2.  Shares    in   a    corporation,  whose 
charter  provides  that  the  capital 
stock   of    the    company  shall   be 
deemed  personal  estate,  and  "  be 
transferable  upon  the  books  of  the 
said  corporation,"  can  be  effectu- 
ally transferred   as  collateral    se- 
curity for  a  debt,  as  against  a  cred- 
itor of  the   bailor,   who   attaches 
them  Without  notice  of  any  trans- 
fer, by  a  delivery  of  the  certificates 
thereof,  together  with  a  blank  ir- 
revocable  power   of  attorney   for 
the  transfer  thereof  froia  the  bailor 
to  the  bailee. 

kl.  delivered  to  the  complainants  the 
certificates  of  certain  stock  of  a 
corporation,  accompanied  by  a 
power  of  attorney  irrevocable  for 
the  transfer  thereof,  as  collateral 
security  for  certain  of  his  notes, 
and  the  renewals  thereof.  The 
charter  of  said  corporation  pro- 


566 


INDEX. 


vided  that  its  capital  stock  should 
be  deemed  personal  estate. and  "be 
transferable  upon  the  books  of  said 
corporation  : "  and  further,  "  that 
books  of  transfer  of  stock  shouldj 
be  kept,  and  should  be  evidence 
of  the  ownership  of  said  stock  inj 
all  elections  and  other  matters  sub- 
mitted to  the  decision  of  the  stock- 
holders of  said  corporation."  A 
creditor  of  M.  then  levied  an  at- 
tachment upon  this  stock.  Held, 
that  the  transfer  to  the  complain- 
ants was  effectual  as  against  such 
attaching  creditor.  The  Broadway 
Bank  v.  McElrath,  24 

3.  Upon  principles  of  public  law,  it 
is  clear  that  the  power  of  erecting 
a  bridge,  and  taking  tolls  thereon, 
over  a  navigable  river  which  forms 
the  co-terminous  boundary  .between 
two  states  can  only  be  conferred 
by  the  concurrent  legislation  of 
both  states. 

When  the  power  to  make  and  main- 
tain such  bridge,  and  take  tolls 
thereon,  has  been  given  by  th'e 
joint  legislation  of  both  states,  the 
principle  could  hardly  be  admitted 
that  either  state,  by  its  separate 
legislation,  could  declare  that  no 
other  bridge  should  be  built  across 
such  river  within  certain  limits, 
and  thus  render  the  franchise  ex- 
clusive. 

By  the  agreement  entered  into  be- 
tween the  states  of  New  Jersey  and 
Pensylrania,  the  river  Delaware, 
in  its  whole  length  and  breadth, 
is  to  be  and  remain  a  common  high- 
way equally  free  and  open  for  the 
use  of  both  states,  and  each  state 
is  to  enjoy  and  exercise  concurrent 
jurisdiction  within  and  upon  the 
water  between  the  shores  of  said 
river.  Both  states  concurred  in 
granting  to  complainants  the  right 
to  erect  and  maintain  their  bridge, 
and  take  tolls  thereon.  The  legis- 
lature of  New  Jersey  afterwards 
passed  an  act  declaring  "  that  it 
should  not  be  lawful  for  any  per- 
son or  persons  whatsoever  to  erect, 
or  cause  to  be  erected,  any  otheri 
bridge  or  bridges  across  the  said 
river  Delaware  at  any  place  or 


places   within  three  miles  of  the 
bridge  to  be  erected." 

Held,  that  even  if  it  was  the  intention 
that  this  act  should  take  effect  with- 
out the  assent  of  the  State  of  Penn- 
sylvania, that  it  is  void,  on  the 
ground  that  it  is  in  contravention 
of  the  agreement  above  mentioned 
between  the  two  states.  As  neither 
state,  by  the  exercise  of  her  sole 
jurisdiction,  has  the  right,  by  the 
terms  of  the  agreement,  to  grant 
the  franchise,  so  neither  can  law- 
fully contract  to  refuse  to  grant  it. 

Under  the  circumstances,  as  exhib- 
ited in  the  case,  it  was  further  held 
that  the  act  of  1801,  which  confer- 
red the  exclusive  privilege  on  the 
complainants,  was  not  designed  by 
the  legislature  of  New  Jersey  to 
go  into  effect  until  the  same  had 
received  the  assent  of  the  legisla- 
ture of  Pennsylvania. 

Whether  a  corporation  has  violated 
its  charter  or  forfeited  its  franchise, 
is  a  question  solely  for  the  deter- 
mination of  a  court  of  law. 

But  when  a  bridge  company,  setting 
up  an  exclusive  right  within  cer- 
tain limits,  asks  an  injunction  to 
prohibit  the  building  a  bridge 
within  such  limits,  a  court  of 
equity  will  not  lend  its  assistance 
when  it  appears  from  the  answer 
that  the  bridge  of  the  complain- 
ants has  been  so  far  appropriated 
to  the  uses  of  a  railroad  as  to  ren- 
der it  inconvenient  and  dangerous 
for  ordinary  travel.  President,  &c., 
v.  Trenton  City  Bridge  Co.,  46 

4.  The  trustees  of  a  religious,  literary 
or  other  benevolent  association, 
irrespective  of  any  special  power 
conferred  by  their  charters,  cannot 
purchase  and  hold  real  estate  un- 
der trusts  of  their  own  creation 
which  shall  protect  their  property 
from  the  reach  of  their  creditors. 

Where  property  is  given  to  a  corpor- 
ation in  trust  for  a  charitable  use, 
the  trust  is  the  creature  of  the  do- 
nor, and  he  may  impose  upon  it 
such  character,  conditions,  and 
qualifications  as  he  may  aee  fit. 


INDEX. 


567 


But  the  case  is  widely  different  where 
a  corporation  attempts,  by  means 
of  its  own  devising,  however  hon- 
est and  well  intentioned,  to  place 
its  own  property  beyond  the  reach 
of  its  creditors. 

The  premises  in  question,  and  upon 
which  the  defendants  had  erected 
a  house  of  worship,  were  conveyed 
to  them  for  the  consideration  of 
one  thousand  dollars.  The  deed 
was  an  absolute  conveyance  in  fee 
upon  certain  trusts  that  the  pro- 
perty should  be  held  as  a  Luther- 
an Church  forever,  &c.,  and  con- 
tained a  clause  that  the  grantee 
should  not  by  deed  alienate,  dis 
pose  of,  or  otherwise  charge  or  en- 
cumber said  property,  &c.  The 
corporation  executed  a  mortgage 
to  secure  a  legitimate  debt. 

Held,  that  the  corporation  had  the 
legal  title  to  the  land,  and  the 
power  at  law  of  executing  the 
mortgage,  and  that  there  was  no 
equity  in  refusing  to  enforce  the 
mortgage  for  the  payment  of  an 
honest  debt  of  the  corporation 
under  color  of  protecting  a  charit- 
able use.  Magie  y.  German  Evan- 
gelical Dutch  Church,  77 

6.  The  clause  in  the  charter  of  the 
proprietors  of  the  bridges  over  the 
rivers  Passaic  and  Hackensack, 
which  declares  that  it  shall  not  be 
lawful  for  any  person  or  persons 
whatsoever  to  erect,  or  cause  to  be 
erected,  any  other  bridge  or  bridges 
over  or  across  the  said  river,  con- 
stitutes a  contract  on  the  part  of 
the  state,  which  cannot  constitu- 
tionally be  annulled  or  abrogated. 

It  is  immaterial  whether  the  in- 
strument by  which  the  public 
faith  is  pledged  is  in  terms  a 
contract,  or  in  form  a  mere  legis- 
lative enactment;  in  either  event, 
it  is  equally  a  contract  within  the 
meaning  of  the  constitution. 

The  proprietors  ot  the  bridges 
over  the  rivers  Passaic  and  Hack- 
ensack  have,  by  contract  with  the 
state,  the  exclusive  franchise  of 
maintaining  said  bridges,  and  tak- 


ing tolls  thereon  ;  and  snch  con- 
tract is  within  the  protection  of 
the  constitution,  which  declare* 
that  no  law  shall  be  passed  impair- 
ing the  obligation  of  contracts. 

But  the  construction  of  a  viaduct 
over  said  river  for  a  railway,  to  be 
used  exclusively  for  the  passage  of 
locomotives,  engines,  and  railroad 
cars,  is  not  a  bridge  within  the 
prohibition  of  said  charter. 

Public  grants  are  to  be  construed 
strictly.  Bridge  Co.  v.  Hoboken 
Land  and  Improvement  Co.,  8 1 

5.  Corporation  aggregate  must  answer 
under  seal  of  corporation.  Ransom 
v.  Stonington  Savings  Bank,  212 

7.  The  complainants  were  the  undis- 
puted owners  of  all  the  franklinite 
and  iron  ores  upon  a  certain  tract, 
when  they  were  found  separate 
from  the  zinc,  and  they  claimed  to 
own  all  the  franklinite  and  iron 
ores,  whether  they  existed  separate 
from  the  zinc  or  not.  The  defend- 
ants were  the  undisputed  owners  of 
all  the  zinc  and  other  ores  on  same 
premises,  except  franklinite  and 
iron  ores,  and  they  claimed  to  own 
the  franklinite  and  iron  ores  when 
they  did  not  exist  separate  and 
distinct  from  zinc  ores.  Upon  bill 
filed,  an  injunction  had  been  al- 
lowed, restraining  the  defendants 
from  mining,  carrying  away,  or 
using  any  franklinite  or  iron  ore. 
It  appeared  that  the  ores  or  mine- 
rals were  found  combined  in  such 
varied  proportions  as  to  render  it 
often  difficult  to  decide  which 
metal  preponderated  in  quantity  or 
value  in  a  given  specimen,  and  to 
render  it  difficult,  if  not  impossi- 
ble, to  mine  either  ore  without  at 
the  same  time  taking  the  other. 
Upon  motion  being  made  to  dis- 
solve the  injunction,  on  the  ground 
that  the  whole  equity  of  the  bill 
was  denied  by  the  answer,  held — 

First,  that  the  dispute  was  not  about 
facts,  but  was  a  question  of  legal 
construction  and  the  proper  inter- 
pretation of  the  grants  of  the  min- 
ing rights. 


568 


INDEX. 


Second,  that  the  matters  in  contro- 
versy were  not  of  such  a  nature 
that  they  could  be  met  and  denied 
by  the  answer,  so  as  to  entitle  the 
defendants  to  a  dissolution  of  the 
injunction  as  a  matter  of  course. 
Boston  Franklinite  Co.  V.  New  Jer- 
sey Zinc  Company,  215 

8.  Can  a  corporation  enter  into  a  part- 
nership?    Query.     Van  Kuren  v. 
Trenton  L.  Co.,  "  302 

9.  A  court  of  equity  will  grant  an  in- 
junction to  restrain  a  public  nui- 
sance at   the  instance  of  a  party 
who  sustains  a  special  injury. 

But  a  mere  diminution  of  the  value 
of  the  property  or  the  party  com- 
plaining by  the  nuisance,  without 
irreparable  mischief,  will  not  fur- 
nish any  foundation  for  equitable 
relief. 

The  location  of  a  railroad  through  a 
public  street  in  a  line  not  warrant- 
ed by  law,  will  not  be  enjoined  at 
the  instance  of  the  owner  of  an  un- 
improved building  lot  suffering  no 
present  detriment.  Zabriskie  v. 
Jersey  City  and  Bergen  Railroad 
Company,  314 

10.  The  usual  and  appropriate  mean 
ing   of  the  word  "  premises "   in 
conveyances  is,  "  the  thing  demised 
or  granted  by  the  deed." 

It  is  the  inflexible  rule  of  law  that  a 
deed,  except  in  cases  of  latent  am- 
biguity, must  be  construed  ac- 
cording to  the  legal  effect  and 
meaning  of  its  terms  unaffected  by 
extrinsic  evidence. 

A  mere  agreement  to  transfer  the 
property  and  stock  of  an  incorpo- 
rated company  cannot  affect  its 
legal  existence,  nor  will  the  actual 
transfer  of  all  the  real  and  per- 
sonal estate  of  the  corporation,  in- 
cluding the  stock  itself,  extinguish 
its  charter. 

The  Sussex  Zinc  and  Copper  Mining 
and  Manufacturing  Company  con- 
veyed to  the  New  Jersey  Zinc  Com- 
pany "all  the  zinc  and  other  ores, 
except  franklinite  and  iron  ores, 


found  or  to  be  found  in  or  upon 
certain  premises  ;  the  title  and  in- 
terest of  the  former  company  be- 
came afterwards  legally  vested  in 
the  Boston  Franklinite  Company. 
It  appeared  that  the  two  ores,  zinc 
and  franklinite,  existed  in  the 
mine  in  close  mechanical  combi- 
nation, so  that  the  one  could  not  be 
removed  without  the  other ;  but 
that  at  the  date  of  the  conveyance 
the  masses  or  veins  on  the  premises 
in  question  were  regarded  and 
known  as  franklinite.  Held — 

First,  that  the  exception  in  the  deed 
was  not  limited  to  the  franklinite 
and  iron  ores,  where  they  existed 
separate  and  apart  from  the  zinc. 

Second,  that  the  grantor  retained  a 
freehold  estate  in  the  thing  excep- 
ted,  and  the  grantee  acquired  a 
freehold  estate  in  the  thing 
granted,  and  that  the  terms  "  zinc 
ores  "  and  "  franklinite  and  iron 
ores  "  were  used  as  a  description 
of  the  land  granted  and  reserved. 

Third,  that  in  construing  the  deed, 
reference  must  be  had  in  order  to 
ascertain  the  intention  of  the  par- 
ties, to  the  existing  state  of  know- 
ledge of  the  subject  matter,  the  re- 
ceived meaning  of  the  terms  em- 
ployed, and  the  usages  prevailing 
at  the  date  of  the  conveyance. 

Fourth,  that  by  the  term  "  zinc  ores," 
as  used  in  the  deed,  was  meant 
those  veins  in  which  the  ore  of  zinc 
was  the  predominating  one,  and  by 
franklinite  not  the  pure  mineral  of 
that  name,  which  was  never  found 
except  in  small  and  detached  spe- 
cimens, but  those  veins  in  which 
franklinite  predominated,  and 
which  were  known  and  designated 
as  franklinite  ore. 


A  deed  for  a  mine  with  mining  privi- 
leges is  not  a  mere  license  to  take 
away  ore,  or  the  grant  of  an  ease- 
ment, but  of  a  part  of  the  freehold. 

A  court  of  equity  will  rarely  inter- 
pose by  injunction  to  restrain  the 
working  of  mines  until  the  right  is 
established  at  law.  New  Jersey 


INDEX. 


569 


Zinc  Co.  v.  New  Jersey  Franklinite 
Co.,  322 

11 .  A  water  company,  authorized  by 
legislative  enactment  to  use  the  soilj 
under  the  public  roads  forthepur-] 
po-'e  of  constructing  their  works,' 
having  laid  their  pipes  across  tliej 
street  of  a  city,  will  be  compelled' 
to  lower  them  so  as  to  conform  to 
a  new  grade  established  by  muni- 
cipal authority. 

No  public  right  can  be  taken  away 
by  mere  inference  or  legal  con- 
struction— it  can  only  be  by  ei- 
press  grant. 

Equity  wHl  not  interfere  by  injunc- 
tion to  redress  public  nuisances 
where  the  object  sought  can  be  at- 
tained in  the  ordinary  tribunals. 
Water  Com'rs  of  Jersey  City  v. 
Mayor  of  Hudson  City,  420 

12.  A  contract  is  not  void  because  the 
corporation  with  which  it  is  made 
is  misnamed  therein. 

Where  the  complainant,  being  a  cor- 
poration, sues  by  a  wrong  name, 
the  bill  may  be  amended,  in  this 
respect,  at  the  hearing. 

The  stockholders  com  pose  the  corpo- 
ration, and  a  mere  failure  to  elect 
officers  at  the  time  designated,  will 
not  work  a  dissolution. 

The  complainants,  a  building  asso- 
ciation, received  from  the  defend- 
ant his  bond  and  mortgage,  recit- 
ing that  he  was  a  shareholder  in 
said  building  association,  and  had 
agreed  to  accept,  and  had  received 
from  said  corporation,  $100,  at  the1 
date  of  the  bond,  "upon  and  for! 
the  redemption  of  number  69,  l>e-j 
ing  the  sum  lent  or  offered  to  be 
received  by  him  therefor."  The 
condition  of  the  bond  was  as  fol- 
lows: "Now,  if  the  said  A.  W.  M., 
<&c.,  shall  pay  to  the  said  H.  B.  As- 
sociation, number  one,  upon  said 
share,  the  sum  of  $7,  on  the  third 
Monday  of  each  month  thereafter, 
for  the  period  of  ten  years  from 
the  date  hereof,  or.  until  the  sur- 
plus assets  of  said  corporation  shall 
be  sufficient,  over  and  above  all  its 


debts  and  liabilities,  to  pay  on  each 
unredeemed  share,  to  ttie  holder 
thereof,  the  sum  of  $8,"  <fec.  Held— 

Firtt,  that  the  failure  of  other  share- 
holders to  pay  their  monthly  dues 
afforded  no  defence  to  a  suit  for 
the  foreclosure  of  said  mortgage. 

Second,  that  the  contract  was  in  ac- 
cordance with  the  charter  of  the 
corporation,  and  was  not  usurious. 

Third,  that  an  agreement  made  by 
all  the  parties  in  interest  that  the 
affairs  of  the  company  should  be 
wound  up,  and  that  the  owners  of 
the  unredeemed  shares  should  re- 
ceive the  sums  they  had  advanced, 
with  interest,  and  that  the  owners 
of  the  redeemed  shares  who  had 
given  mortgages  for  the  price  of 
redemption  should  be  discharged 
upon  paying  the  amount  of  their 
mortgages  with  interest  was  valid, 
and  should  be  enforced.  Hoboken 
Building  Association,  v.  Martin,  427 

13.  The  legislature,  in  1790,  incorpo- 
rated the  complainants,  and  gave 
them  the  power  to  build  a  bridge 
over  the  Hackensack  river,  to  take 
tolls  for  man  and  beast  passing  over 
it,  and  by  the  same  law  enacted 
that  it  should  not  be  lawful  for  any 
person  whatever  to  erect  any  other 
bridge  over  said  river  for  an  hun- 
dred years. 

In  1860,  the  legislature  gave  to  the 
defendants  power  to  build  a  rail- 
way from  Hoboken  to  Newark, 
with  the  necessary  viaduct  over 
the  said  river  Hackensack. 

Under  this  last  act,  the  defendants 
commenced  to  build  a  viaduct  over 
the  said  river,  described  in  their 
answer  to  the  bill  of  complaint 
thus :  "  A  structure,  so  as  to  lay 
iron  rails  thereon,  upon  which  en- 
gines and  cars  may  be  moved  and 
propelled  by  steam,  not  to  be  con- 
nected with  the  shore  on  either 
side  of  said  river,  except  by  a  piece 
of  timber  under  each  rail,  and  in 
such  a  manner,  as  near  as  may  be, 
so  as  to  make  it  impossible  for 
man  or  beast  to  cross  said  river, 
upon  said  structure,  except  in  the 


570 


INDEX. 


cars  of  the  defendants  ;  that  the 
only  roadway  between  said  shores 
and  said  structure  will  be  two  or 
more  iron  rails,  two  and  a  quarter 
inches  wide,  four  and  a  half  inches 
high,  laid  and  fastened  upon  stid 
timber  four  feet  ten  inches  asun- 
der." Held— 

First,  that  the  said  proposed  structure 
was  no  bridge  within  the  meaning 
of  the  complainants'  charter. 

Second,  that  no  structure  across  the 
river  Hacken»ack,  which  had  not  a 
footway  for  man  and  beast  to  walk 
over  on,  was  a  bridge  within  the 
meaning  of  the  complainants' 
charter. 

Third,  that  the  term  bridge,  as  known 
to  the  common  law,  was  a  struc-j 
ture  over  a  river  having  a  footpath 
for  man  and  beast,  and  cases  upon 
this  subject  reviewed. 

Fourth,  by  the  complainants'  charter, 
they  may  collect  tolls  from  men! 
walking  over  their  bridge,  and  for| 
animals  walking  over  their  bridge! 
drawing  their  burthens ;  by  the' 
defendants'  charter,  they  cannot 
collect  tolls  for  such  use  of  their 
structure  ;  held,  that  the  franchises 
given  the  defendants  are  not  the 
same  franchises  as  those  given  to 
the  complainants,  and  therefore  do 
not  interfere  with  them. 

Fifth,  the  first,  fifth,  and  sixth  sec- 
tions of  the  defendant's  charter 
commented  on  and  'construed. 
The  Proprietors  of  Bridges  v.  Ho- 
bo-ken Land  Company,  503 

14.  In  practice,  commissioners  ap- 
pointed to  appraise  damages  and 
value  lands  taken  by  incorporated 
companies,  have  generally  united 
the  value  of  the  land  and  the  dam- 
ages in  the  same  sum  without  dis- 
crimination. Trenton  Water  Power 
v.  Chambers,  199 

The  better  practice  would  be  to  dis- 
tinguish the  value  of  the  land  from 
the  damages.  lb. 

These  appraisements  include  pro- 
spective damages.  Ib. 


COSTS. 

1.  Where  a  bill  has  been  dismissed  or 
demurrer    allowed,   and    another 
bill  is  filed  for  the  same  matter, 
this  court  will  slay  proceedings  in 
the  second  suit  till  the  costs  of  the 
former  are  paid.     Updike  v.  Bart- 
les,  231 

2.  Where  parties  settle  out  of  court, 
neither  is   entitled   to   costs  from 
his  adversary.    Bruce  v.  Gale,  211 

3.  Where  the  necessity  for  filing  the 
bill  was  occasioned  by  the  miscon- 
duct of  the  defendants  as  executors, 
in  omitting   to  inventory  and  in 
refusing    to  account   for    moneys 
which  were  due  the  estate,  no  costs 
will  be   allowed   them  out  of  the 
estate.     Post  v.  Stevens,  293 

4.  In  partition  suits  the  costs  of  the 
proceeding,  as  well  as  (lie  partition 
itself,  will  be   charged    upon    the 
several    shares    in    proportion    to 
their  respective  values, 

Counsel  fees  do  not  properly  consti- 
tute a  part  of  the  costs  and  ex- 
penses to  be  charged  against  the 
owners  of  the  several  shares. 

The  court  will  allow  to  the  commis- 
sioners such  sum  beyond  the  usual 
fees  fixed  by  the  statute  as  may  be 
proper. 

The  report  of  the  commissioners  .de- 
signating the  boundaries  of  the 
several  lots,  with  the  map,  consti- 
tutes the  usual  return  ;  but  the  cost 
of  making  a  field  book  will  be  al- 
lowed. 

A  charge  for  drawing  the  return  is 
proper. 

The  cost  of  a  copy  of  the  return  for 
record  in  the  county  clerk's  office 
allowed  in  this  case. 

A  share  may  be  subdivided  on  par- 
tiiiou,  and  the  costs  thereof  will 
be  charged  on  that  share.  Coles  v, 
Coles,  367 

5.  Where  complainant's  proceedings 
are  regular,  the  decree  is  opened 


INDEX. 


571 


at  the  instance  of  the  defendant  on 
payment  of  costs, 

But  where  a  sole  defendant  resides 
out  of  the  state,  and  no  foreign 
publication  is  ordered  or  notice 
given  to  the  defendant,  costs  on 
opening  the  decree  ordered  to 
abide  the  event  of  the  suit.  Oram 
v.  Dennison,  438 

6.  A  defendant  who  is  permitted  to 
answer  after  decree  regularly  ,ta- 
ken,  will  be  required  to  pay  costs. 
Emery  v.  Downing,  59 

7.  Costs    not    allowed    either    party, 
when  ?     Moore  v.  Vail,  298 

8.  In  a  foreclosure  suit,  the  costs  in- 
curred by  the  complainant  in  re- 
sisting a  motion  on  the  part  of  the 
mortgagor  to  set  aside  the  execu- 
tion will  be  ordered  paid  out  of  the 
surplus  money  in  preference  to  the 
claim  of  a  purchaser  of  the  mort- 
gaged   premises,    who   takes   title 
from  the  mortgagor  after  the  de- 
cree, and  before  the  motion  to  set 
aside     execution.     McPhecson    v. 
Ho**d,  299 


CREDITOR  AND  DEBTOR. 
See  FRAUDS. 

1.  The  trustees  of  a  religious,  literary 
or  other   benevolent    ass->ciaiion,j 
irrespective  of  any  special  power 
conferred  by  their  charters,  cannot] 
purchase  ami  hold  real  estate  un-j 
der  trusts  of  their  own    creation,: 
which  shall  protect  their  property 
from  the  reach  of  their  creditors. 
Magie  v.  The  German  Ckwck,    77 

2.  A   creditor  having  exhausted  his 
remedy  by  execution  at  law,  has  a 
right  to  come  into  a  court  of  equity 
to  set  aside  a  conveyance  alleged 
to  have  been  fraudulently  made  by 
lib  debtor.     Brovn  v.  Fuller,     271 


DECREES. 

1.  A  decree  will  bear  only  six   per 
cent,  interest,  although  founded  on 


a  mortgage  bearing  seven  per  cent. 
Wilson  v.  Marsh,  289 

2.  Decree  will  not  be  opened  except 
on  good  grounds.  Emery  v.  Down- 
ing, 59 

DEED. 

1.  The  question  is  well  settled  at  com- 
mon law,  that  the  cancellation  of 
a  deed  by  consent  of  parlies  will 
not  divest  the  grantee,  and  re-vest 
in  the  grantor  an  estate  which  has 
once  vested. 

The  title  to  lands  vested  in  a  married 
woman  by  an  unrecorded  deed  can- 
not be  divested  by  her  parol  con- 
sent that  such  deed  may  be  can- 
celed, and  a  conveyance  made  by 
her  grantor  to  her  husband. 

The  testimony  of  a  married  woman, 
illegally  elicited  before  a  grand 
jury  on  a  charge  of  bigamy  agiinst 
her  husband,  is  not  admissible 
against  her  on  a  question  of  pro- 
perty. 

Can  a  grand  juryman,  being  a  wit- 
ness in  a  suit  resjieciing  proj>erty, 
disclose  the  secrets  of  the  grand 
jury  room  ?  Query. 

\  feme  corerl  was  seized  of  certain 
lands.  She  being  ill,  consented,  at 
the  solicitation  of  her  husband, 
to  the  cancellation  of  her  deed  and 
to  a  conveyance  from  her  grantor 
to  her  husband.  During  her  life- 
time her  husband  married  a  second 
wife.  Being  imprisoned  on  charge 
of  bigamy,  he  and  his  mistress  re- 
conveved  the  lands  to  his  wife,  she 
and  her  husband  executing  a  mort- 
gage for  the  benefit  of  the  husband, 
to  a  third  party ;  this  mortgage 
was  afterwards  assigned  to  com- 
plainant, who  was  a  lawyer,  the 
counsel  of  the  husband,  and  bad 
knowledge  that  the  property  had 
been  held  by  the  husband  in  trust, 
and  that  the  mortgage  was  also 
held  in  tnist  for  the  husband-  it 
was  held  that  the  complainant  had 
sufficient  knowledge  to  put  him  on 
inquiry;  that  he  was  not  a  bona 
fde  holder,  and  that  the  mortgage 


572 


INDEX. 


was  void  in  his  hands. 
Hill, 


Wilson  v. 
143 


2.  By  force  of  the  statute,  a  decree  di- 
recting a  conveyance  to  be  made 
vests  the  estate,  so  that  the  rights 
of  the  parties,  in  case  of  a  variance 
•between  the  terms  of  the  decree 
and  of  the  conveyance,  must  de- 
pend upon  the  former  rather  than 
upon  the  latter. 

The  terms  of  such  decree  must  be 
construed  precisely  as  the  convey- 
ance itself  would  be. 

A  conveyance  to  the  grantees  and 
their  heirs  for  the  use  of  the  grant- 
ees and  their  heirs,  in  trust  for 
the  persons  beneficially  interested, 
does  not  vest  the  legal  estate  in 
the  latter  by  virtue  of  the  statute 
for  transferring  uses  into  posses- 
sion. 

And  where  the  deed  is  thus  techni- 
cally drawn,  the  trustees  take  the 
legal  estate  by  virtue  of  the  limi- 
tation, without  the  aid  of  any  rea- 
soning derived  from  the  nature  of 
the  estate. 

In  construing  limitations  of  trusts, 
courts  of  equity  adopt  the  rule  of 
law  applicable  to  legal  estates. 

An  estate  was  conveyed  to  the  grant- 
ees in  trust  to  permit  the  grantor 
and  his  family  and  the  lather  of 
the  grantor,  during  their  lives  re- 
spectively, to  enjoy  the  estate,  and 
take  the  rents  and  profits  thereof, 
and  after  their  death  in  trust  to 
convey  the  premises  to  the  son  of 
the  grantor  and  "  to  such  other 
lawful  issue  as  the  grantor  may 
then  have  living,  share  and  share 
alike  in  fee  simple,  as  soon  as  he 
or  they  arrive  at  age" — held,  that 
the  son  of  grantor  had  a  vested 
interest,  which  was  not  determin- 
able  by  his  death  before  the  hap- 
pening of  the  contingency  upon 
which  the  legal  estate  was  to  be 
conveyed  to  him,  viz.,  the  deter- 
mination of  the  intervening  life 
estates.  The  general,  rule,  as  ap- 
plied to  legal  estates,  is,  no  remain- 
der will  be  construed  to  be  contin- 


gent which  may  consistently  with 
the   intention    be   deemed  vested. 

It  is  the  uncertainty  of  the  right  of 
enjoyment  which  renders  the  re- 
mainder contingent,  not  the  un- 
certainty of  the  actual  enjoyment. 

In  a  deed,  the  word  "issue"  is  uni- 
versally a  word  of  purchase,  and 
whenever  the  word  is  made  use  of 
as  a  word  of  purchase,  either  in  a 
deed  or  in  a  will,  it  is  synonymous 
and  co-extensive  with  the  term 
"descendants."  Price  v.  Sisson,  166 

3.  Where  a  mistake  has  occurred  in 
the  sale  of  lands,  equity  has  power 
to  reform  the  conveyance.  Durant 
v.  Bacot,  201 

4.  But  where  a  deed  is  drawn  strictly 
in  accordance  with  the   intention 
of  the   parties,  although    from    a 
mistake   in  judgment,  it  will  not 
effect  the  end  in  view,  there  is  no 
case  presented  for  the  interference 
of  the  court.  Ib. 

5.  The  usual  and  appropriate  mean- 
ing  of  the   word    "premises"  in 
conveyances    is,    "  the    thing    de- 
mised or  granted  by  the  deed." 

It  is  the  inflexible  rule  of  law  that  a 
deed,  except  in  cases  of  latent  am- 
biguity, must  be  construed  accord- 
ing to  the  legal  effect  and  meaning 
of  its  terms  unaffected  by  extrinsic 
evidence. 

A  mere  agreement  to  transfer  the 
property  and  stock  of  an  incorpor- 
ated company  cannot  affect  its  le- 
gal existence,  nor  will  the  actual 
transfer  of  all  the  real  and  per- 
sonal estate  of  the  corporation,  in- 
cluding the  stock  itself,  extinguish 
its  charter. 

The  Sussex  Zinc  and  Copper  Mining 
and  Manufacturing  Company  con- 
veyed to  the  New  Jersey  Zinc  Com- 
pany "  all  the  zinc  and  other  ores, 
except  franklinite  and  iron  ores, 
found  or  to  be  found  in  or  upon 
certain  premises  ;  the  title  and  in- 
terest of  the  former  company  be- 
came afterwards  legally  vested  in 


INDEX. 


573 


the  Boston  Franklinite  Company. 
It  appeared  that  the  two  ores,  zinc 
and  franklinite,  existed  in  the 
mine  in  close  mechanical  combi- 
nation, so  that  the  one  could  not  be 
removed  without  the  other ;  but[ 
that  at  the  date  of  the  conveyance! 
the  masses  or  veins  on  the  premises] 
in  question  were  regarded  and 
known  as  franklinite.  Held — 

First,  that  the  exception  in  the  deed 
was  not  limited  to  the  franklinite 
and  iron  ores,  where  they  existed 
separate  and  apart  from  the  zinc. 

Second,  that  the  grantor  retained  a 
freehold  estate  in  the  thing  excep- 
ted,  and  the  grantee  acquired  a 
freehold  estate  in  the  thing 
granted,  and  that  the  terms  "  zinc 
ores  "  and  "  franklinite  and  iron 
ores "  were  used  as  a  description 
of  the  land  granted  and  reserved. 

Third,  that  in  construing  the  deed, 
reference  must  be  had  in  order  to 
ascertain  the  intention  of  the  par- 
ties, to  the  existing  state  of  know- 
ledge of  the  subject  matter,  the  re- 
ceived meaning  of  the  terms  em- 
ployed, and  the  usages  prevailing 
at  the  date  of  the  conveyance. 

Fourth,  that  by  the  term  "  zinc  ores," 
as  used  in  the  deed,  was  meant 
those  veins  in  which  the  ore  of  zinc 
was  the  predominating  one,  and  by 
franklinite  not  the  pure  mineral  of 
that  name,  which  wa,s  never  found 
except  in  small  and  detached  spe- 
cimens, but  those  veins  in  which 
franklinite  predominated,  and 
which  were  known  and  designated 
as  frauklinite  ore. 

A  deed  for  a  mine  with  mining  privi- 
leges is  not  a  mere  license  to  take 
away  ore,  or  the  grant  of  an  ease- 
ment, but  of  a  part  of  the  freehold 

A  court  of  equity  will  rarely  inter- 
pose by  injunction  to  restrain  the 
working  of  mines  until  the  right  is 
established  at  law.  New  jersey 
Zinc  Co.  v.  New  Jersey  Franklinite 
Co.,  322 


creditors;  it  is  valid  a<?  against  the 
grantor  and  his  heirs. 

The  terms  of  the  contract  must  be 
clearly  proved  before  a  party  is 
entitled  to  a  decree  for  its  specific 
performance.  Lockerson  v.  Stitt- 
well,  357 

7.  A  deed,  to  be  valid,  must  go  into 
the  hands  of  the  grantee  with  the 
consent  of  the  grantors. 

In  the  absence  of  all  evidence  to  the 
contrary,  mere  possession  by  the 
grantee  of  a  complete  instrument 
is  sufficient  evidence  of  a  lawful 
delivery. 

Mere  tradition  of  a  sealed  instru- 
ment, even  to  the  party  in  whose 
favor  it  is  drawn,  does  not  neces- 
sarily in  all  cases  make  it  a  deed. 

A  sealed  instrument,  intrusted  to  a 
party  with  authority  to  deliver  it 
to  the  grantee  in  case  certain  con- 
ditions are  complied  with,  will  not 
become  a  deed  if  delivered  without 
compliance  with  such  conditions. 

If  the  instrument  be  once  delivered 
to  the  party  who  on  its  face  is  en- 
titled to  it,  it  becomes  eo  instanti  a 
deed,  and  no  agreement  in  conflict 
with  its  plain  terms  will  be  per- 
mitted to  be  proved  to  show  that 
its  operation  as  a  deed  is  to  depend 
on  the  performance  of  some  condi- 
tion subsequent. 

Where  the  proof  is  clear  that  final 
transfer  of  the  instrument  was  not 
to  be  made  unless  certain  terms 
were  complied  with,  the  law  puts 
the  party  claiming  its  benefit  to 
the  proof  of  compliance. 

Parol  evidence  to  defeat  an  instru- 
ment as  a  deed  is  admissible  to 
show  that  when  the  defendants,  or 
some  of  them,  signed  the  instru- 
ment, it  was  stated  by  them,  to 
the  agent  procuring  their  signa- 
tures, that  it  should  be  binding  on 
them  only  in  the  event  of  its  exe- 
cution by  certain  other  persons. 


6.  A  deed  mnde  to  hinder,  delay,  or  Neither  does  it  make  any  difference 
defraud  creditors  is  void  only  as  to'1     whether  the  agent  ever  communi- 

YOL  ii.  2  N 


574 


INDEX. 


cated  the  limitation  to  the  party 
accepting  the  deed. 

The  principle  is  settled,  that  one 
who  claims  through  a  special  agent 
takes  the  risk  of  his  want  of  power. 

The  minutes  of  a  corporation  are  not 
evidence  of  an  agreement  alleged 
to  have  been  made  by  the  stock- 
holders as  individuals,  and  not 
intended  to  bind  the  corporation. 

The  object  of  an  issue  out  of  chancery 
to  be  tried  by  a  jury  is  to  inform 
the  conscience  of  the  Chancellor, 
and  it  is  his  province  to  determ- 
ine what  evidence  shall  be  read 
before  the  jury. 

The  action  of  the  Chancellor  on  the 
verdict  is  a  matter  resting  in  his 
discretion,  and  is  not  subject  to  re- 
view in  the  appellate  court. 

Where  twenty-one  out  of  thirty-seven 
stock  holders  of  a  railroad  company 
sign  and  deliver  a  bond  for  the 
payment  of  $35,000  to  three  of 
their  own  number,  and  it  appears 
upon  the  face  of  the  instrument 
that  the  bond  was  to  be  binding 
upon  such  as  should  sign  it,  and 
that  each  should  become  responsi- 
ble when  and  as  he  signed  it,  pa- 
rol  proof  is  not  admissible  to  show 
that  it  was  not  to  be  binding  on 
any,  until  all  the  stockholders  had 
signed  it. — Per  VBEDKNBUKGH, 
dissenting. 

A  bond  in  the  following  words — 
"  We,  John  Black,  Thomas  Haines, 
(&c.,  naming  nineteen  others,) 
stockholders  in  the  Delaware  and 
Atlantic  Railroad,  send  greeting  : 
Whereas,  the  Delaware  and  Atlan- 
tic Railroad  Company  borrowed 
of  John  Black  and  (two  others) 
$35,000 ;  and  whereas,  we  whose 
flames  are  hereunto  subscribed  and 
seals  affixed,  have  agreed  with  the 
said  Black  and  others  that  in  case 
the  corporate  property  should  fail 
to  pay  said  $35,000  and  interest, 
so  that  a  loss  or  deficiency  should 
happen,  that  in  that  event  each  of 
us  and  each  of  them,  the  said  Black 
and  others,  shall  sustain  an  equal 
portion  of  said  loss,"  expresses  up- 


on its  face  that  each  should  become 
responsible  when  and  as  he  sighed 
it,  and  excludes  parol  proof  that 
none  were  to  be  responsible  until 
all  the  stockholders  of  the  com- 
pany had  signed  it. — Per  VREDEN- 
BURGH,  dissenting.  Black  v.  Shrci>e, 

435 

8.  A  deed  of  conveyance,  absolute  in 
its  terms,  given  to  secure  a  loan  of 
money  is  a  mortgage,  and  the  right 
of  redemption  exists  although  the 
money  was  not  repaid  at  the  time 
agreed  upon. 

Once  a  mortgage  always  a  mortgage, 
is  a  maxim  of  equity,  to  which 
there  is  no  exception. 

The  right  of  redemption  is  an  in- 
separable incident  of  which  the 
mortgagor  cannot  deprive  himself, 
even  by  an  express  covenant. 
Vanderhaize  v.  Hugues,  244 


DESERTION 
See  DIVORCE. 

DIVORCE. 

l.To  establish  a  case  of  desertion 
sufficient  to  authorize  a  divorce,  it 
should  appear  that  the  wife  left 
her  husband  of  her  own  accord, 
without  his  consent  and  against 
his  will,  or  that  she  obstinately 
refused  to  return  without  just 
cause,  on  the  request  of  her  hus- 
band. 

Desertion  cannot  be  inferred  from 
the  mere  unaided  fact  that  the 
parties  do  not  live  together.  Jen- 
nings v.  Jennings,  38 

2.  A  divorce  will  not  be  decreed  upon 
proof  that  the  husband  went  away 
and  lived  apart  from  the  wife      A 
mere  separation  cannot  be  consid- 
ered a  desertion  within  the  mean- 
ing of  the  statute.  Cook  v.  Cook,  203 

3.  Divorce   on   ground   of  abandon- 
ment.    Fates  v.  Yates,  280 

4.  A  divorce  cannot  be  had  on   the 
ground  of  adultery  if  the 


INDEX. 


575 


has  been  reconciled  to  his  wife 
after  the  adultery  committed  by 
her,  or  knowingly  retain  her  after 
she  has  committed  adultery.  Marsh 
v.  Marsh,  281 

5.  A  wife  having  left  her  home  with 
the  consent  of  her  husband,  with 
the  intent  of  spending  the  holidays 
with  her  mother,  her  subsequent 
change  of  purpose  and  refusal  to 
return,  will  not  convert  such  ab- 
sence into  a  willful  desertion  from 
the  time  of  leaving  her  home  with- 
in the  act  relating  to  divorces. 
Conger  v.  Conger,  286 

DOMICIL. 
See  PRACTICE,  9. 

DOWER. 

1.  In  proceedings  for  dower,  if  the 
defendant  deny  the  complainant's 
right  to  dower,  the  question  must 
be  tried  at  law. 

But  the  court  may  inquire  of  what 
estate  the  husband  died  seized,  and 
this  involves  an  inquiry  into  the 
nature  and  character  of  the  hus- 
band's right  to  the  estate. 

A  bill  setting  up  an  equitable  title  to 
the  land  in  the  widow,  and  pray- 
ing that  if  that  claim  shall  fail 
that  dower  may  be  assigned,  is  not 
multifarious. 

An  objection  to  a  bill  on  the  ground 
of  multifariousness,  taken  at  the 
hearing,  is  not  much  favored. 

Where  the  guardian  of  a  femnle  in- 
fant wrongfully  converted  the  per- 
sonal estate  in  his  hands  into  lands, 
placing  the  title  in  a  third  person, 
who  afterwards  conveyed  the  same 
to  the  husband  of  the  infant,  upon 
the  death  of  the  husband  the 
widow  cannot  claim  an  equitable 


title   to  such 
Morgan, 


lands.     Rockwell  v. 
384 


2.  An  order  for  maintenance  pendente 
lite,  will  not  be  made  in  behalf  of 
a  widow  on  her  bill  for  dower. 


Upon  general  principles,  alimony  or 
maintenance  is  not  allowed  except 
as  against  the  husband  himself, 
and  that  only  as  incidental  to  a 
bill  for  divorce  or  other  relief 
against  the  husband.  /& ,  119 

3.  The  wife's  right  of  dower  will  be 
protected  as  against   post-nuptial 
mortgages  not   executed   by   her. 
Hayes  v.  Whitall,  241 

4.  Agreement  of  widow  in  partition 
to   accept  sum   in   gross   for  her 
dower.     Mvlford  v.  Hiers,  1 

If  she  die  after  sale  and  after  agree- 
ing to  accept  sura  in  gro*s,  such 
sum  shall  go  to  her  children.  Ib. 


EASEMENT. 

1.  Where  the  owner  of  a  spring  lot, 
and  of  a  paper  mill  on  another 
tract,  by  an  artificial  arrangement 
conveys  the  water  to  the  mill,  and 
then  sells  the  spring  lot,  the  pur- 
chaser hikes  it  subject  to  th«  bur- 
then. 

.  The  principle  is,  that  where  the 
owner  of  two  tenements  sells  one 
of  them,  the  purchaser  takes  the 
tenement,  or  portion  sold,  with  all 
the  benefits  and  burthens  which 
appear  at  the  time  of  the  sale  to 
belong  to  it,  as  l>etween  it  and  the 
property  which  the  vendor  retains. 
Seymour  v.  Lewis,  439 


EVIDENCE. 

1.  The  law  requires  wills,  both  of  real 
and  personal  estate,  to  be  in  writ- 
ing, and  parol  evidence  is  not  ad- 
missible to  add  to,  contradict,  or 
vary  their  contents.    CieavelaMd  v. 
Havens,  101 

2.  The  testimony  of  a  married  woman 
illegally  elicited  before   a    grand 
jury,  on  a  charge  of  bigamy  against 
her    husband,   is   not    admissible 
against  her  on  a  question  of  pro- 
perty.    Wilson  v.  Hill,  143 


576 


INDEX. 


3.  Can  a  grand  juryman,  being  a  wit- 
ness in  a  suit  respecting  property, 
disclose   the  secrets  of  the  grand 
jury  room?    Query,  Ib. 

4.  An  injunction  of  lunacy  is  not  con- 
clusive evidence  on  the  question  I 
of  incapacity.    Hunt  v.  Runt,  161' 

5.  Where  a  decree,  by  force  of  the 
statute,  directs  a  conveyance  to  be 
made,  and  the  conveyance  so  made 
varies  from  the  decree,  the  estate 
vests  according  to  the  decree.  Price 
v.  Sisson,  168 

6.  It  is  not  competent  for  the  pur- 
chaser to  show  by  paiol  evidence 
that   the   scrivener  who  drew  the 
codicil  made  a  mistake,  and  that 
he  was  to  have  two-thirds  of  the 
lot  behind  the  barn.     Jones'  Exec- 
utors v.  Jones,  236 

7.  The  lapse  of  twenty  yeara  without 
payment  of  principal  or  interest  of 
a  legacy  will  raise  a  presumption 
of  payment.  Hayes  v.  Wliiiall,  241 

8.  Parol  evidence  of  the  declarations 
of  the  testator  is  not  admissible  to 
show  an  intention  to  charge  lega- 
cies upon  the  land.     Massaker  v. 
Massaker,  264 

9.  Evidence   relative  to  matters  not 
stated  in  the  pleading,  nor  fairly] 
within   its  general  allegations,   is 
impertinent,  and  cannot  be  made 
the  foundation  of  a  decree.     Van-, 
sciver-v.  Bryan,  434j 

• 

10.  Where  proof   is  clear  that  final 
transfer  of  a  deed  was  not  to  be 
made   unless  certain  terms   were 
complied  with,    the  law   puts  the 
party  claiming   its  benefit  to  the 
proof    of    compliance.     Black    v. 
Shreve,  455 

11.  Parol  evidence  to  defeat  an  in- 
strument as  a  deed  is  admissible  to 
show    that   when    defendants,    or 
some  of  them,  signed  the  instru- 
ment, it  was  stated  by  them  to  the 
agent  procuring  their  signatures, 
that  it  should  be  binding  on  them 
only  in  the  event  of  its  execution 
by  certain  other  persons.  Ib. 


12.  The  minutes  of  a  corporation  are 
not  evidence  of  an  agreement  al- 
leged   to  have  been  made  by  the 
stockholders  as   individuals,    and 
not  intended  to  bind  the  corpora- 
tion. Ib. 

13.  If  no  replication  has  been  filed, 
the  facts  stated  in  the  answer  must 
be  taken  as  true  on  the  hearing. 
Qash'M  v.  Sine,  130 

14.  A  codicil  cannot  be  altered  by  pa« 
rol  evidence  of  a  mistake  of  th( 
scrivener.      Jones'     Executors     v 
Jones,  237 

15.  The  lapse  of  twenty  years  without 
payment   of  principal  or  interest 
of  a  legacy  will  raise  a  presump- 
tion   of    payment,    but   such    pre- 
sumption   may    be   overcome   by 
evidence.     Hayes  v.  Whitull,     241 

16.  Parol  evidence  is  admissible  in 
equity  to  show  that  a  deed   abso- 
lute on  its  face  was  intended  as  a 
mortgage,  and  that  the  defeasance 
was  omitted  by  fraud,  surprise,  or, 
mistake.  Lockerson  v.  Stillwell,  357 


EXECUTOE   AND  ADMINIS- 
TKATOR. 

1.  Amount  of  commissions  to  be  al- 
lowed.    Holcombe  v .  Holcombe,  415 

2.  In  case  the  will  directs  the  execu- 
tors to  invest  the  residue  of  the 
personal  estate,  and  the  interest  to 
accrue  thereon  "  in  good  produc- 
tive real  estate  at  their  discretion," 
and  one  of  the  executors,  having 
funds   in  his  hands,  is  prevented 
by  the  misconduct  of  his  co-execu- 
tors from  making  the  investment 
directed  by  the  will,  it  is  his  duty 
to  guard  the  estate  from  loss  by 
applying,     within     a     reasonable 
time,  to  the  proper  court  for  in- 
structions.    Ib.t  413 

3.  The  law  is  well  settled  in  this  state, 
that  when   executors  jointly  settle 
their  final  account,  they  are  jointly 
liable    for   the   balance  so    ascer- 
tained. 


INDEX. 


577 


fn  such  case  the  parties  interested 
may  rely  on  the  settlement,  and 
are  not  driven  to  a  discovery  in 
whose  hands  the  funds  are  or  in 
what  proportion  the  executors  are 
liable. 

If  a  trustee,  by  his  own  negligence, 
suffers  his  co-trustee  to  receive  and 
waste  the  trust  fund,  when  he  had 
the  means  of  preventing  such  re- 
ceipt and  waste  by  the  exercise  of 
reasonable  care  and  diligence,  he 
will,  in  such  case,  be  held  person- 
ally responsible  for  the  loss.  La- 
roc  v.  Douglass,  308 

4.  Where  the  necessity  for  filing  the 
bill  was  occasioned  by  the  miscon- 
duct of  the  defendants   as  execu- 
tors, in  omitting  to  inventory  and 
in  refusing  to  account  for  moneys 
which  were  due  the  estate,  no  costs 
will   be  allowed  them  out  of  the 
estate.    Post  v.  Stevens,  293 

5.  The  rule  is  inflexible,  that  a  sale 
made  by  an  administrator,  or  any 
other  acting  in  a  fiduciary  capac- 
ity, to  himself  or  for  his  benefit, 
will  be  held  void  at  the  instance 
of  ihe  party  prejudiced. 

The  remedy  in  equity  is  to  set 
aside  the  sale  on  equitable  terms, 
and  to  treat  the  administrator  as  a 
trustee  for  the  parties  in  interest. 
Houston  v.  Cassedy,  228 


See  Smith  v.  Smith, 


164 


FEIGNED  ISSUE. 
5e«  PBACTICE,  37. 

FEME  COVERT. 

1.  Liabilities  voluntarily  incurred  by 
a  married  woman  will  be  charged 
upon  her  separate  estate,  but  she 
cannot  by  her  contract  make  her- 
self  personally  liable. 

The  act  of  1857,  which  provides  that 
a  feme  covert  may  covenant  as  to 
the  title  of  her  lands,  affords  the 
strongest  legislative  construction 
that  the  act  of  1852  does  not  by 


necessary  implication  confer  upon 
her  the  right  to  dispose  of  her  real 
estate,  or  to  make  contracts  io 
regard  to  it. 

A  contract  entered  into  by  a  married 
woman  for  the  sale  of  her  estate 
cannot  be  enforced. 

But  equity  will  charge  her  separate 
property  with  the  re-payment  of 
money  advanced  to  the  wife,  at  her 
instance  and  for  her  benefit,  or  on 
account  of  her  estate.  Pentz  v.  Si- 
monson,  232 

2.  To  entitle  a  party  who  pays  the 
debt  of  another  to  the  rights  of  the 
creditor  by  subrogation,  the  debt 
must  be  paid  at  the  instance  of  the 
debtor,  or   the   person    paying   it 
must  be  liable  as  surety  or  other- 
wise for  its  payment. 

Where  the  title  to  land  is  in  a  mar- 
ried woman  as  her  separate  pro- 
perty, she  and  her  husband  living 
separate,  and  money  is  paid  and 
advanced  at  her  instance  and  for 
her  benefit,  a  mortgage  executed 
by  her  alone  to  secure  such  ad- 
vances will  be  a  valid  and  equita- 
ble lien  on  such  property.  Wilson. 
v.  Brown,  277 

3.  At  common  law,  the  husband   is 
entitled   not  only  to  all  the  per- 
sonal    property    which   the   wife 
owns  at  the  time  of  her  marriage, 
but  to  all  that  she  acquires  by  her 
skill  or  labor  during  the  coverture. 

Though  a  gift  from  the  husband  to 
the  wife  is  void  at  law,  it  will  be 
protected  in  equity  as  against  the 
husband,  and  if  made  by  virtue 
of  an  ante-nuptial  agreement,  as 
against  his  creditors  also. 

A  married  woman,  purchasing  land 
with  the  knowledge  and  approval 
of  her  husband,  the  title  being 
taken  in  the  name  of  the  husband, 
and  he  executing  a  mortgage  there- 
on for  the  cost  of  a  dwelling  sub- 
sequently erected,  will  acquire  no 
equitable  title  to  the  premises,  as 
against  the  husband's  creditors,  on 
the  ground  that  she  mainly  con- 
tributed to  paying  off  the  mort- 


578 


INDEX. 


gage  from  the  avails  of  her  labor 
during  coverture.  Skillman  v. 
Skillman,  403 

4.  The  mother  is  entitled  to  the  cus- 
tody of  her  children  who  are  un- 
der the  age  of  seven.     Sennet  v. 
Bennet,  114 

5.  Separate  property  of  feme — when 
chargeable.     Wilson  v.  Brown,  277 


FEAUD. 

1.  A  creditor,  having  exhausted  his 
remedy  by  execution  at  law,  has  a 
right  to  come  into  a  court  of  equity 
to  set  aside  a  conveyance  alleged  to 
have   been  fraudulently  made  by 
his  debtor.    Brown  v.  Fuller,    271 

2.  Deed  obtained  by  undue  influence. 
Hunt  v.  Hunt,  161 


GUARDIANSHIP. 
See  FEME  COVERT,  4. 

HUSBAND  AND  WIFE. 

See  BARON  AND  FEME. 
FEME  COVERT. 

INFANT. 
See  FEME  COVERT,  4. 

INJUNCTION. 

1.  An  injunction  staying  proceedings 
in  ejectment  was  granted  on  a  bill 
setting  up  loss  of  title  deeds.  The 
answer  denied  fully  all  knowledge 
of  deeds  alleged  to  have  been  lost. 
Held,  that  injunction  should  be 
dissolved. 

A  mere  formal  or  technical  denial  of 
the  charges  of  the  bill  is  not,  as 
of  course,  sufficient  to  dissolve  an 
injunction. 

The  staleness  of  the  defendant's 
claim,  which  he  was  enforcing  at 


law,  affords  no  ground  for  con- 
tinuing an  injunction  against  him. 
It  is  the  claim  of  the  complainant 
to  which  the  equitable  defence  of 
a  stale  claim  is  applicable.  Hor- 
ner  v.  Jobs,  19 

2.  When  a  bridge  company,  setting 
up  an  exclusive  right  within  cer- 
tain limits,  asks  an  injunction  to 
prohibit   the   building    a    bridge 
within  such  limits,  a  court  of  equi- 
ty will  not  lend  its  assistance  when 
it   appears  from  the  answer  that 
the  bridge  of  the  complainants  has 
been   so   far  appropriated   to  the 
uses  of  a  railroad  as  to  render  it 
inconvenient   and   dangerous    for 
ordinary  travel.     Trenton  Bridge 
v.  City  Bridge,  46 

3.  In  cases  of  public  nuisance,  a  bill 
in  equity  asking  relief  by  way  of 
prevention  can  be  maintained  by  a 
private  person  only  on  the  ground 

.  of  apprehended  special  damage  pe-. 
culiar  to  himself,  and  distinct  from 
that  done  to  the  public  at  large. 

A  statute  of  this  state  authorized  the 
freeholders  of  the  county  of  Mon- 
mouth  to  erect  a  bridge  over  the 
Navesink  river,  "beginning  at  or 
near  the  house  of  Samuel  Hubbard, 
Esq.,  commonly  called  Smock's 
Point,  or  near  the  house  of  Joseph 
Van  Schoick,  or  from  Joseph 
Smith's  Point  to  the  opposite 
shore."  On  3d  January,  1826,  the 
freeholders  selected  the  site  for  the 
bridge,  and  upon  which  it  was  ac- 
cordingly erected.  A  railroad  had 
been  recently  constructed,  intersect- 
ing the  road  near  the  bridge  at  the 
south  side  of  the  river,  rendering 
the  use  of  the  road  at  that  termi- 
nus dangerous.  To  avoid  this  in- 
convenience, it  was  now  proposed, 
in  erecting  a  new  bridge,  to  locate 
its  southern  terminus  at  a  point 
about  one  hundred  yards  west  of 
its  original  site.  The  complainant 
was  the  owner  of  about  twenty-five 
acres  of  land,  near  the  termina- 
tion of  the  existing  bridge,  bound- 
ing on  the  public  road  leading 
from  the  bridge,  of  a  valuable 
wharf  upon  the  river,  a  boarding- 
house,  and  other  valuable  improve- 
ments, situate  upon  streets  con- 


INDEX. 


579 


nected  with  the  road  leading  to 
the  bridge,  to  all  of  which  il  afford- 
ed the  most  convenient  access. 
Held— 

First,  that  the  right  to  erect  bridges 
over  navigable  rivers  does  not 
reside  in  the  chosen  freeholders 
by  virtue  of  their  general  powers, 
but  must  be  derived  from  special 
power  conferred  by  the  legislature. 

Second,  that  by  the  above  act,  the 
power  of  locating  the  bridge 
within  certain  limits  was  given  to 
the  discretion  of  the  freeholders; 
but  that  having  exercised  that 
discretion,  and  the  selection  hav- 
ing been  made,  their  power  was 
exhausted. 

Third,  that  in  this  case,  the  freehold- 
era  had  not  the  power  materially 
to  alter  either  terminus  of  the 
bridge. 

Fourth,  that  the  injury  sustained  by 
the  complainant  was  in  no  sense 
peculiar  to  himself,  and  on  this 
account  his  bill  could  not  be  sus- 
tained. 

Fifth,  that  although  the  new  bridge 
was  technically  a  nuisance,  yet  as 
it  was  being  built  in  good  faith  and 
/or  the  public  benefit,  a  court  of 
equity  would  not  restmin  its  erec- 
tion, even  on  an  information  by 
the  attorney-general  in  behalf  of 
the  public.  Allen  v.  Board  of 
Chosen  Freeholders,  67 

4.  The  complainants  were  the  undis 
puted  owners  of  all  the  franklinite 
and  iron  ores  upon  a  certain  tract, 
when  they  were  found  separate 
from  the  zinc,  and  they  claimed  to 
own  all  the  franklinite  and  iron 
ores,  whether  they  existed  separate 
from  the  zinc  or  not.  The  defend- 
ants were  the  undisputed  owners  of 
all  the  zinc  and  other  ores  on  same 
premises,  except  franklinite  and 
iron  ores,  and  they  claimed  to  own 
the  franklinite  and  iron  ores  when 
they  did  not  exist  separate  and 
distinct  from  zinc  ores.  Upon  bill 
filed,  an  injunction  had  been  al- 
lowed, restraining  the  defendant 
ii.'ining,  carrying  away,  or 


tising  any  franklinite  or  iron  ore. 
It  appeared  that  the  ores  or  mine- 
rals were  found  combined  in  such 
varied  pro[>ortionB  as  to  render  it 
often  difficult  to  decide  which 
metal  preponderated  in  quantity  or 
value  in  a  given  specimen,  and  to 
render  it  difficult,  if  not  impossi- 
ble, to  mine  either  ore  without  at 
the  same  time  taking  the  other. 
Upon  motion  being  made  to  dis- 
solve the  injunction,  on  the  ground 
that  the  whole  equity  of  the  bill 
was  denied  by  the  answer,  held — 

First,  that  the  dispute  was  not  about 
facts,  but  was  a  question  of  legal 
construction  and  the  proper  inter- 
pretation of  the  grants  of  the  min- 
ing rights. 

Second,  that  the  matters  in  controver- 
sy were  not  of  such  a  nature  that 
they  could  be  met  and  denied  by 
the  answer,  so  as  to  entitle  the  de- 
fendants to  a  dissolution  of  the  in- 
junction as  JL  matter  of  course. 
Boston  Franklinite  Co.  v.  New  Jer- 
sey Zinc  Co.,  215 

5.  A  nice  or  doubtful  question  of  law 
will  not  be  decided  on  a  motion 
to  dissolve  an  injunction,  but  will 
be  reserved  for  the  final  hearing. 

An  injunction  restraining  interfer- 
ence with  the  complainant  in  the' 
exercise  of  his  rights  as  a  partner 
of  the  defendants  will  be  dissolved 
on  the  clear  averment  in  the  an- 
swer, that  the  partnership  was  dis- 
solved by  mutual  consent. 

Can  a  corporation  enter  into  a  co- 
partnership ?  Query.  Van  Kuren 
v.  Trenton  L.  Co.,  302 

6.  A  court  of  equity  will  grant  an  in- 
junction to  restrain  a  public  nui- 
sance  at  the  instance  of  a  party 
who  sustains  a  special  injury. 

But  a  mere  diminution  of  the  value 
of  the  properly  of  the  party  com- 
plaining, by  the  nuisance,  without 
irreparable  mischief,  will  not  fur- 
nish any  foundation  for  equitable 
relief. 


580 


INDEX. 


The  location  of  a  railroad  through  a] 
public  street  in  a  line  not  war- 
ranted by  law,  will  not  be  en- 
joined at  the  instance  of  the  owner 
of  an  unimproved  building  lot 
suffering  no  present  detriment. 
Zabriskie  v.  Jersey  City  Railniad 
Company,  314 

7.  In  case  of  a  bill  for  specific  per- 
formance of  an  agreement  for  the 
sale  of  land,  containing  averments 
of  a  parol  enlargement  of  the  time 
of  payment,    possession,   and    the 
erection    of   permanent   improve- 
ments, the  injunction  w;ll   be  dis- 
solved upon  the  filing  of  an  answer 
denying  those  averments. 

It  is  not  necessary  that  affidavits  an- 
nexed to  answers  should  be  taken 
upon  notice,  or  that  copies  should 
be  served  on  the  adverse'  party. 

Where  a  motion  is  made  to  dissolve 
an  injunction  upon  the  answer, 
affidavits  annexed  to  the  answer 
can  only  be  read  in*  reply  to  affi- 
davits annexed  to  the  bill.  Gariss 
v.  Gariss,  320 

8.  A  court  of  equity  will  rarely  inter- 
pose by  injunction  to  restrain  the 
working  of  mines  until   the  right 
is  established  at  law.      New  Jersey 
Zinc  Co.  v.  New  Jersey  Franklinite 
Company,  322 

9.  Where  the  ends  of  justice  require 
it,  the  injunction  will  be  continued 
to  the  hearing.    Stotesbury  v.  Vail, 

390 

10.  To  effect  a  regular  service  of  an 
injunction,  the  writ  itself,   under 
the  seal  of  the  court,  must  be  shown 
to  the  party  against  whom  it  issues, 
and  a  true  copy  thereof  delivered 
to  him. 

Personal  service  will  be  dispensed 
with  where  the  party  is  out  of  the 
state  or  cannot  be  found. 

The  modern  practice  is  for  the  court, 
by  specjal  order,  to  dispense  with 
personal  service  where  the  defend- 
ant avoids  the  service  of  the  writ, 
or  other  circumstances  render  such 
order  necessary  or  proper. 


The  court  will  punish  the  violation 
of  its  order  for  the  injunction, 
though  the  writ  be  not  served,  if 
it  appear  that  the  defendant  knew 
of  its  existence. 

Where  the  defendant  and  his  wife 
were  non-residents,  and  the  injunc- 
tion was  served  out  of  the  state  on 
the  husband,  and  proof  was  made 
that  the  wife  could  not  be  found, 
an  order  was  made  that  euch  ser- 
vice should  be  deemed  valid,  and 
directing  a  copy  of  such  order  to 
be  served  at  the  dwelling-house  of 
the  defendants.  Haring  v.  Kauff- 
man,  397 

11.  Equity  will  not  interfere  by  in- 
junction to  redress  public  nuisances 
where  the  object  sought  can  be  at- 
tained in  the  ordinary  tribunals. 
Jersey  City  v.  Hudson  City,  420 


INTEKEST. 

Decrees  h°ar  fix  per  cent,  interest  in 
all  cases.     Wilson  v.  Marsh,      289 


JUDGMENT. 

A  judgment  trithout  the  issuing  of 
an  execution  operates  as  a  lien 
from  the  tiu;e  of  its  entry  on  the 
landi  of  the  dtfrndant,  and  a  sub- 
sequent conveyance  or  mortgage 
executed  by  the  Defendant  will  not 
defeat  such  lier>  Vansciver  v. 
Bryan,  434 


JURISDI  ,?"ION. 

Where  it  appears  tha>  by  the  judg- 
ment of  a  court  in  mother  state, 
between  the  same  \  a  lies,  all  the 
material  matters  of  equity  relied 
upon  by  the  complaimnt  in  his 
suit  in  this  court  are  rdjudicated 
and  settled,  the  bill  of  Complaint 
will  be  dismissed. 

A  court  of  equity  will  not  permit  a 
party,  who  has  had  his  rig  \its  fully 
investigated  and  decide"  I  in  a 
court  of  equity  in  another  state, 
to  avoid  a  final  decision  in  that 


INDEX. 


581 


tribunal,  and  to  raise  for  re-inves- 
tigation the  same  questions  on  the 
Rame  facts.  Brown  v.  Lexington 
and  D.  Railroad  Co.,  191 


LEGACY. 

1.  When  legacies  are  directed  to  be 
paid  out  of  the  estate  of  the  testa- 
tor, the  real  estate  is  charged  with 
the  legacies. 

So  when  the  lands  are  devised  to 
the  executors,  who  are  directed  to 
pay  the  legacies. 

The  general  rule,  that  a  legacy  bears 
interest  from  the  time  it  is  pay- 
able, admits  of  an  exception  where 
a  legacy  given  by  a  parent  to  a 
minor  child  is  made  payable  at  a 
future  day,  and  no  provision  is 
made  for  the  support  of  the  legatee 
in  the  meantime. 

Interest  not  allowed  under  the  lan- 
guage of  the  will  in  question  and 
the  circumstances  of  the  case. 
Cox  el  uz.  v.  Corkendall,  133 

2.  A  testator  devised  as  follows,  viz.  : 
"Item.     I   give   and  bequeath  to 
my  beloved  wife  the  use  and  ben- 
efit of  my  home  farm  on  which  I 
now  live  as  long  as  she  remains  my 
widow.     At  her   marriage  or  de- 
cease, I  will  that  the  aforesaid  farm 
be  sold  at  one  or  two  years'  credit. 
Item.   I  give  and  bequeath  also  to 
my  beloved  wife  Mary  five  hun- 
dred dollars  of  the  money  arising' 
out  of  the  sale  of  paid  farm."     By! 
a    subsequent  clause,  the  testator 
gave   as  follows:  "Item.     [  give 
and  bequeath  to  my  beloved  wife 
Mary  one  hundred  dollars  out  of 
the  personal  estate." 

Held,  that  the  bequest  of  five  hun- 
dred dollars  to  the  wife  was  vested' 
at  death  of  testator,  and  at  her 
death  passed  to  her  personal  rep- 
resentatives. Owen  v.  Owen,  188 

8.  When  an  annuity  i«  charged  on 
real  estate  the  rule  is,  that  it  does 
not  commence  until  the  devisee  of 
such  estate  is  entitled  to  the  pos- 
session thereof. 


This  principle  is  applicable  where  a 
num  of  money  is  charged  on  land 
in  which  the  testator  had  only  a 
reversion. 

The  lapse  of  twenty  years  without 
payment  or  allowance  of  principal 
or  interest  of  a  legacy  will  raise  a 
presumption  of  payment,  but  such 
presumption  may  be  overcome  by 
evidence. 

The  wife's  right  of  dower  will  be 
protected  as  against  post-nuptial 
mortgages  not  executed  by  her. 
Hayes  and  wife  v.  W/utall,  241 

See  WILLS. 


LIMITATION. 

1.  The   staleness   of   the   defendant's 
claim,  which  he  was  enforcing  at 
law,  affords   no   ground    for  con- 
tinuing an  injunction  against  him. 
It  is  the  claim  of  the  complainant 
to  which  the  equitable  defence  of 
a  stale  claim  is  applicable.     Hor- 
ner  v.  Jobs,  1 9 

2.  The  lapse  of  twenty  years  without 
payment,  of  principal  or  interest 
of  a  legacy  will  raise  a  presump- 
tion of  payment.     Hayes  v.  Whit- 
all,  241 


LIS  PENDENS. 

A  person  purchasing  pendent e  lite 
is  subject  to  all  the  equities  of  the 
person  under  whom  lie  claim-*. 
McPherson  v.  Hansel,  299 


LUNACY. 

l.An   inquisition  of  lunacy   is   not 
conclusive  evidence   on  the 
tion  of  incapacity. 

The  evidence  in  this  ca«e  heKl  to 
establish  the  fact  that  the  grantee 
was  incapable,  from  mental  inca- 
pacity, to  make  the  deed  in  ques- 
tion. 


582     . 


INDEX. 


Held,  tdso,  that  the  conveyance 
would  have  been  set  aside  on  the 
further  ground  of  undue  influence 
exercised  by  the  grantee  and  his 
family  over  the  grantor,  a  man  of 
weak  mind,  the  consideration  of 
the  deed  also  being  inadequate. 
Hunt  v.  Hunt,  161 


MARRIED  WOMEN. 

See  FEME  COVERT. 
BARON  AND  FEME. 


MECHANICS'  LIEN. 

A  mechanics'  lien  under  the  statute 
takes  priority  upon  the  building 
over  a  prior  mortgage  upon  the 
land. 

But  the  supplement  of  16th  March, 
1859,  which  creates  a  lien  fur  re- 
pairs, makes  it  subject  to  any  mort- 
gage prior  to  the  filing  of  the  lien. 

In  this  case  the  premises  ordered  to 
be  sold  entire,  and  relative  value 
of  building  and  land  ascertained. 
Newark  Lime  and  Cement  Co.  v. 
Morrisson,  133 


MINES. 
See  DEED,  5. 

MISTAKE. 

Where  a  mistake  has  occurred  in 
the  sale  of  lands,  there  is  no  doubt 
of  the  power  of  a  court  of  equity 
to  reform  the  conveyance. 

But  when  a  deed  is  drawn  strictly 
in  accordance  with  the  intention 
of  the  parties,  although  from  H 
mistake  in  judgment  it  will  not 
effect  the  end  in  view,  there  is  no 
case  presented  for  the  interference 
of  the  court.  Durant  v.  Bacol,  201 

MORTGAGE. 

l.In  a  case  of  several  mortgages  to  a 
large  amount  which  were  undis- 


puted, and  of  subsequent  judg- 
ments, some  of  which  were  in  con- 
troversy, the  court  will  not,  on  the 
application  of  the  mortgagor,  stay 
proceedings  on  the  execution  un- 
der the  decree  of  foreclosure,  but 
will  order  the  surplus  money  to  be 
brought  into  court  to  abide  the  re- 
sult of  the  contest  touching  the 
judgments.  Schenck  v.  Conover,  31 

2.  Where  one  purchases  land,  and  as- 
sumes in  his  deed  to  pay  off  a  bond 
and   mortgage   of  his   grantor,  to 
which   such   land   is    subject,   he 
thereby  becomes  a  surety  in   re- 
spect to  the  mortgage  debt. 

This  obligation  of  the  purchaser  to 
pay  the  debt  enures  in  equity  to 
the  benefit  of  the  mortgagee,  and 
he  may  enforce  it  against  the  pur- 
chaser to  the  extent  of  the  defi- 
ciency in  a  bill  to  foreclose.  Klap- 
worth  v.  Dressier,  62 

3.  The  trustees  of  a  religious,  literary 
or   other   benevolent    association, 
irrespective  ;of  any  special  power 
conferred  by  their  charters,  cannot 
purchase  and  hold  real  estate  un- 
der trusts  of  their  own    creation, 
which  shall  protect  their  property 
from  the  reach  of  their  creditors. 

Where  property  is  given  to  a  corpor- 
ation in  trust  for  a  charitable  use, 
the  trust  is  the  creature  of  the  do- 
nor, and  he  may  impose  upon  it 
such  character,  conditions,  and 
qualifications  as  he  may  see  fit. 

But  the  case  is  widely  different  where 
a  corporation  attempts,  by  means 
of  its  own  devising,  however  hon- 
est and  well  intentioned,  to  place 
its  own  property  beyond  the  reach 
of  its  creditors. 

The  premises  in  question,  and  upon 
which  the  defendants  had  erected 
a  house  of  worship,  were  conveyed 
to  them  for  the  consideration  of 
one  thousand  dollars.  The  deed 
was  an  absolute  conveyance  in  fee 
upon  certain  trusts  that  the  pro- 
perty should  be  held  as  a  Luther- 
an Church  forever,  &c.,  and  con- 
tained a  clause  that  the  grantee 
should  not  by  deed  alienate,  dis- 


INDEX. 


533 


pose  of,  or  otherwise  charge  or  en- 
cumber said  property,  Ac.  The 
Corporation  executed  a  mortgage 
to  secure  a  legitimate  debt. 

Held,  that  the  corporation  had  the 
legal  title  to  the  land,  and  the 
power  at  law  of  executing  the 
mortgage,  and  that  there  was  no 
equity  in  refusing  to  enforce  the 
mortgage  for  the  payment  of  an 
honest  debt  of  the  corporation 
under  color  of  protecting  a  charit- 
able use.  Magie  v.  German  Evan- 
gelical Dutch  Church,  77 

4.  After  the  testimony  has  been  closed 
and  the  cause  regularly  set  down 
for  final  hearing,  the  court  will 
not  permit  a  supplementary  an- 
swer to  be  put  in,  unless  the  delay 
is  satisfactorily  accounted  for. 

I»  should  appear  that  the  matter  of 
the  supplementary  answer  is  new, 
or  a  sufficient  reason  given  for  not 
having  it  in  the  original  answer. 


of  building  and  land  ascertained. 
Newark  Lime  and  Cement  Co.  v. 
Morrisson,  133 

6.  After  sale  on  foreclosure,  the  court 
will  compel  the  mortgagor,  or  any 
person  who  has  come  in  |>ossession 
under  him  pending  the  mill,  or 
whose  ti'le  is  not  superior  to  his, 
to  deliver  up  the  possession  of  the 
premises,  and  will  not  drive  the 
purchaser  to  an  action  of  eject- 
ment. 

And  this  assistance  will  be  extended 
to  a  stranger  to  the  record  pur- 
chasing at  such  sale  as  well  as  to 
the  mortgagee. 

The  mode  of  proceeding  has  been  as 
follows,  viz. :  1,  a  demand  of  pos- 
session by  the  purchaser  of  the 
tenant  in  possession  accompanied 
by  an  exhibit  of  the  deed  from  the 
sheriff  or  master ;  2,  order  to  de- 
liver possession  ;  3,  injunction ; 
and  4,  writ  of  assistance. 


7  Se  mortgage  sought  to  be  foreclosed  _. 

was  given    to  secure   part   of  the|  The  exercise  of  the  power  rest,  in  the 

sound  discretion  or  the  court.  It 
will  never  be  exercised  in  a  case 
of  doubt,  nor  under  color  of  its 
exercise  will  a  question  of  legal 


consideration  on  the  purchase  ofi 
the  mortgaged  premises.  The  title! 
to  a  part  of  the  premises  failed. 
The  complainants  were  not  the 
vendors  of  the  premises  nor  the 
original  mortgagees.  They  held! 
the  mortgage  by  assignment,  exe- 
cuted prior  to  the  sale  of  the  pre- 
mises by  the  original  mortgagor 
to  the  defendant.  Under  these  cir- 
cumstances, the  fact  that  the  title 
made  by  the  mortgagor  to  the  de- 
fendant, the  present  owner,  was 
defective,  can  in  no  wise  affect  the 
rights  of  a  bona  fide  mortgagee 
under  a  mortgage  executed  priorj 
to  the  conveyance.  Smallwood  v. 


Lewin, 


123 


6.  A  mechanics'  lien  tinder  the  stat- 
ute takes  priority  upon  the  build' 
ing  over  a  prior  mortgage  upon  the 
land. 

But  the  supplement  of  16th  March, 
1859,  which  creates  a  lien  for  re- 
pairs, makes  it  subject  to  any  mort- 
gage prior  to  the  tiling  of  the  lien. 

In  this  case  the  premises  ordered  to 
be  sold  entire,  and  relative  value 


title  be  tried  or  decided, 
v.  Contver, 


Schenck 
220 


7.  A  deed  of  conveyance,  absolute  in 
its  terms,  given  to  secure  a  loan  of 
money  is  a  mortgage,  and  the  right 
of  redemption  exists  although  the 
money  was  not  repaid  at  the  time 
agreed  upon. 

Once  a  mortgage  always  a  mortgage, 
is  a  maxim  of  equity,  to  which 
there  is  no  exception. 

The  right  of  redemption  is  an  in- 
separable incident  of  which  the 
mortgajjor  cannot  deprive  himself, 
even  by  an  express  covenant. 
Vanderhaize  v.  Hiigues,  244 

8.  A  mortgagee  is  a  purchaser  of  the 
mortgaged  premises  within  the  in- 
tent of  the  statute  of  frauds. 

A  and  B  jointly  executed  a  mortgage 
to  secure  f  5000  upon  land  of  which 
they  were  equally  seized  as  ten- 


584 


INDEX 


ants  in  common.  A,  by  an  ar- 
rangement with  B,  received  only 
$1000  of  the  mortgage  money.  B 
afterwards  executed  a  second  mort- 
gage to  another  party  on  his  moiety 
of  said  lands  and  on  another  lot 
owned  by  him  in  severally.  Both 
mortgages  have  been  duly  record 
ed.  Held,  that  as  against  such 
second  mortgagee,  the  first  mort- 
gage was  a  lien  equally  on  the 
shares  of  A  and  B  in  the  premises. 
Lavalelte  v.  Thompson,  274 

9.  A  mortgagor  conveying  the  premi- 
ses procured  and  delivered  to  the 
vendee  a  receipt  from  the  mortga- 
gee, showing  that  the  interest  on 
the  mortgage  was  paid  to  time  of 
sale.     The  vendee  afterwards  sold 
the  premises,  stating  that  the  in- 
terest was  paid  as  above,  but  sub- 
sequently re-delivered  the  receipt 
to  his  vendor,  who  gave  it  up   to 
the  mortgagee.     Held,  that  the  in- 
terest   could    not     be     recovered 
against   the   second   vendee   on  a 
foreclosure  of  the  mortgage.  Moore 
v.  Vail,  296 

10.  A  person  purchasing  pendente  lite 
is  subject  to  all  the  equities  of  the 
person  under  whom  he  claims. 

In  a  foreclosure  suit,  the  costs  in- 
curred by  the  complainant  in  re- 
sisting a  motion  on  the  part  of  the 
mortgagor  to  set  aside  the  execu- 
tion will  be  ordered  paid  out  of  the 
surplus  money  in  preference  to  the 
claim  of  a  purchaser  of  the  mort- 
gaged premises,  who  takes  title 
from  the  mortgagor  after  the  de- 
cree, and  before  the  motion  to  set 
aside  execution.  McPherson  v. 
Housel,  299 

11.  To  constitute  a  mortgage,  the  con- 
veyance must  be  originally  intended 
between  the  parties  as  a  security 
for  money  or  as  an  encumbrance 
merely. 

Parol  evidence  is  admissible  in 
equity  to  show  that  a  deed  abso- 
lute on  its  face  was  intended  as  a 
mortgage,  and  that  the  defeasance 
was  omitted  by  fraud,  surprise,  or 
mistake.  Lockerson  v.  Stillwell,  357 


]12.  A  chattel  mortgage  is  a  valid  con- 
tract under  the  laws  of  this  state, 
and  the  rights  of  the  parties  under 
it  will  be  protected  and  enforced 
at  law  and  in  equity. 

The  interest  of  the  mortgagee  in 
personal  property,  where  the  pos- 
session remains  with  the  mortga- 
gor and  before  condition  broken, 
cannot  be  taken  in  execution  as 
the  property  of  the  mortgagee. 

After  forfeiture  the  mortgagee,  even 
without  foreclosure,  may,  upon 
due  notice,  sell  and  transfer  the 
absolute  right  to  the  chattels. 

Actual  possession  of  the  chattel  is 
not  essential  to  support  his  title. 

Equity  will  not  permit  the  mortga- 
gor to  sell  the  chattels  to  which 
the  mortgagee  has  the  legal  title 
and  the  right  of  immediate  pos- 
session, and  to  place  them  beyond 
the  reach  of  the  mortgagee  and 
the  control  of  the  court.  Chap- 
man v.  Hunt,  370 

13.  Where  two  lots  are  mortgaged  to 
secure  the  same  debt,  and  one  of 

'  them  is  subsequently  sold  and  con- 
veyed by  the  mortgagor,  the  other 
lot  is  primarily  liable  under  the 
mortgage. 

A  release  subsequently  given  by  the 
mortgagee  to  the  mortgagor  upon 
the  remaining  unsold  lot,  without 
the  assent  of  the  purchaser  of  the 
lot  sold,  will  not  prejudice  the 
rights  of  the  purchaser. 

If  the  lot  released  is  sufficient  to  sat- 
isfy the  entire  debt,  the  mortgagee 
cannot  resort  to  the  lot  first  sold  ; 
but  if  sufficient  to  satisfy  only  a 
par,t  of  the  debt,  such  first  lot  sold, 
in  the  hands  of  the  purchaser,  will 
be  answerable  for  the  deficiency. 

Reference  ordered  to  ascertain  the 
amount  due  on  the  mortgage  and 
the  value  of  the  premises  released. 
Gaskill  v.  Sine,  400 

14.  Where  a  deed  of  conveyance,  ab- 
solute in  its  form,  was  made,  and 


INDEX. 


585 


the  grantee  executed  a  covenant, 
bearing  even  date,  to  re-convey 
upon  the  payment  of  a  certain  sum 
within  a  specified  period,  and  it 
appeared  that  the  deed  was  intend- 
ed as  a  mortgage  to  secure  certain 
loans,  held — 

First,  that  the  grantor  was  entitled 
to  redeem. 

Second,  that  the  grantee  of  the  pre- 
mises should  account  for  the  reals. 

Third,  that  credit  should  be  given  to 
the  grantee  for  necessary  repairs, 
costs  of  insurance,  and  lasting  im- 
provements, but  no  allowance  for 
renting  or  taking  care  of  premises. 
Vanderhaize  v.  Hugnes,  410 


MULTIFARIOUSNESS, 
See  PLEADINO,  3. 

NEWARK. 

1.  The  charter  of  the  defendants  con- 
tained the  following  clause  :  "  The 
president  and  directors  of  said  com- 
pany be  and  they  are  hereby  au- 
thorized and  invested  with  all  the 
rights   and  powers  necessary  and 
expedient  to  survey,  lay  out,  and 
construct  a   railroad    from    some 
suitable  point  in  the  township  of 
Orange,  in  the  county  of  Essex,  to 
some    suitable    point    in   Orange 
street,  or  some  street  north  of  said 
street,  or  south  of  Market  street, 
in  the  city  of  Newark." 

Held,  that  this  enactment  relates  not 
to  the  route,  but  to  the  termination 
of  the  road,  and  that  thereby  the 
road  of  the  company  was  not  ex- 
cluded from  being  located  in  or 
through  Market  street.  McFarland 
v.  The  Orange  and  Newark  Horse 
Car  Railroad  Company,  17 

NUISANCE. 
1.  See  INJUNCTION,  3. 

2.  A  court  of  equity  will  grant  an 
injunction   to    restrain    a    public 


nuisance  at  the  instance  of  a  party 
who  sustains  a  special  injurv. 
Zabriskie  v.  Jersey  City  and  B.  R. 
R,  314 

3.  But  a  mere  diminution  of  the  value 
of  the  property  of  the  party  com- 
plaining by  the  nuisance,  without 
irreparable  mischief,  will  not  fur- 
nish any  foundation  for  equitable 
relief. 

4.  The  location  of  a  railroad  through 
a  public  street  in  a  line  not  war- 
ranted   by   law,   will  not    be  en- 
joined at  the  instance  of  the  owner 
of  an  unimproved  building  lot  suf- 
fering no  present  detriment.      I  b. 


PARTIES. 

1.  On  bills  to  restrain  the  execution 
of  process  or  the  performance  of 
official  acts,  the  sheriff  is  made  a 
party,  as  the  design  of  the  injunc- 
tion is  to  restrain  him  from  acting ; 
but  where  no  relief  is  prayed,  and 
no  decree  asked  against  the  officer, 
it   is   not  necessary,   nor   usually 
expedient,  for  the  sheriff  to  answer. 
Brooks  v.  Lewi*,  214 

2.  On  a  bill  filed  for  an  account  and 
to  execute  the  trust  created   by  a 
deed  absolute  on  its  face,  but  which 
in  point  of  fact  was  executed  upon 
certain  trusts,  viz.,  to   satisfy  the 
debts  of  the  grantor,  and  then  for 
the  use  and  benefit  of  his  family, 
the  widow  and  heirs  of  the  grantor 
are  not  only  proper  but  necessary 
parties. 

All  persons  whose  'interests  are  in- 
volved in  the  issue,  and  who  must 
necessarily  be  affected  by  the  de- 
cree, are  necessary  parties.  Pence 
v.  Pence,  257 

PARENT  AND  CHILD 

1.  At  common  law  the  father,  in  the 
first  instance,  is  entitled  to  the 
custody  of  his  children,  but  courts 
will  exercise  a  sound  discretion  for 
the  benefit  of  the  children  in  dis- 
posing of  their  custody. 


INDEX. 


The  act  of  the  20th  of  March,  I860, 
has  materially  altered  the  rule  of 
the  common  law,  and  has,  to  a 
certain  extent,  deprived  the  court 
of  this  exercise  of  its  discretion  in 
disposing  of  the  custody  of  child- 
ren. By  this  act  the  custody  of 
the  children  within  the  age  of 
seven  years  is  transferred  from  the 
father  to  the  mother. 

This  act  is  not  unconstitutional,  nor 
is  it  void  as  being  incompatible 
with  the  fundamental  principles 
of  government.  Bennett  v.  Ben- 
nett, 114 

2.  The  law  implies  no  promise  to  pay 
for  services  rendered  by  members 
of  a  family  to  each  other,  whether 
by  children,  parents,  or  other  rel- 
atives. 

The  rule  is  well  settled,  that  a 
mere  moral  obligation  constitutes 
no  legal  consideration  for  a  con- 
tract. 

A  widow  and  her  son  were  living 
together;  the  former  performed 
certain  services,  such  as  washing 
and  ironing,  &c. ;  the  latter  con- 
tributed somewhat  to  the  support 
of  the  family.  The  mother  lent 
to  the  son,  from  time  to  time,  small 
sums  of  money.  The  son,  having 
become  embarrassed,  executed  a 
mortgage  to  his  mother,  the  con- 
eideration  being  the  services  and 
the  loans  aforesaid. 

Held,  that,  as  against  creditors,  the 
loans  constituted  a  valid  consider- 
ation— contra  as  to  the  services. 
Updyke  v.  Titus,  151 

3.  Courts  of  equity  may,  in  the  exer- 
cise of  a  sound  discretion,  refuse  to 
decree  the  specific  performance  of 
a  hard  bargain. 

,A  father,  having  conveyed  his  entire 
estate  to  his  children,  upon  their 
stipulating  to  provide  for  their 
.parents  a  comfortable  support  and 
maintenance  suitable  to  their  con- 
dition, wherever  they  or  either  of 
them  might  choose  to  reside,  a 
specific  performance  of  the  con- 


tract was   decreed   in   hia    favor. 
Chubb  v.  Peckham,  207 

Lit  is  a  well-settled  rule,  that  where 
services  are  rendered  gratuitously 
or  without  any  view  to  compensa- 
tion, but  in  the  hope  of  receiving 
a  legacy  or  devise  from  the  person 
to  whom  the  services  are  rendered, 
the  person  rendering  the  services 
can  recover  no  compensation  there- 
for. 

A.  father  made  a  verbal  agreement 
with  his  youngest  son,  that  if  he 
would  remain  and  work  his  farm 
and  support  and  maintain  him  dur- 
ing his  life,  that  upon  his  death  the 
son  should  have  the  farm.  The  son 
remained  and  worked  the  farm,  for 
upwards  of  fifteen  years,  to  the 
satisfaction  of  the  father,  who  then 
becoming  displeased  with  him,  con- 
veyed the  farm  to  his  two  other 
sons,  in  consideration  of  mainte- 
nance for  life.  Held — 

First,  that  as  it  appeared  that  the 
complainant's  services  were  ren- 
dered to  his  father  not  gratuitously, 
but  upon  a  distinct  understanding 
between  himself  and  his  father 
that  he  should  be  compensated  for 
his  services,  and  that  the  material 
part  of  that  agreement  was,  that 
upon  his  father's  death,  provided 
he  continued  to  serve  and  provide 
for  him  during  his  life,  he  should 
receive  the  homestead  farm,  that 
the  agreement  thus  proved  was 
valid  in  law. 

Second,  that  part  performance  took 
the  case  out  of  the  operation  of 
the  statute  of  frauds. 

The  bill  in  this  case  permitted  to 
be  amended  after  final  hearing,  so 
as  to  make  the  contract  alleged 
agree  with  that  proved.  Davison 
V.  Davison,  246 


PARTITION. 

l.In  proceedings  for  partition,  where, 
after  a  sale  of  I  he  premises,  the 
widow,  who  was  entitled  to  dower 
therein,  had  agreed  in  writing 
under  her  hand  and  seal,  accord- 
ing to  the  statutes  of  this  state,  to 


INDEX. 


587 


accept  in  lieu  of  her  said  dower 
such  sum  in  gross  as  the  Chancel- 
lor should  deem  reasonable,  and 
then  having  died  before  distribu- 
tion, it  was  held  that  the  right 
vested  in  the  widow  to  receive  a 
sum  in  gross  could  not  be  divested 
by  her  death,  but  should  go  to  her 
children.  Held  further,  that  the 
value  of  the  widow's  interest 
should  be  ascertained  on  the  prin- 
ciples of  life  annuities. 

Where  the  estate  is  ordered  to  be 
sold,  and  the  widow  agrees  to  ac 
cept  a  gross  sum  in  lieu  of  dower, 
and  she  dies  before  a  sale  of  the 
premises,  her  estate  is  determined 
by  her  death,  and  her  children  can 
have  no  claim  to  any  portion  of ) 
the  proceeds  of  the  sale.  Mulfordi 
and  wife  v.  tiiers,  13 

2.  In  partition  suits  the  costs  of  tliC| 
proceeding,  as  well  as  the  partition 
itself,  will  be  charged  upon  the 
several  shares  in  proportion  to 
their  respective  values. 

Counsel  fees  do  not  properly  consti- 
tute a  part  of  the  costs  and  ex- 
penses lo  be  charged  against  the 
owners  of  the  several  shares. 

The  court  will  allow  to  the  commis- 
sioners such  sum  beyond  the  usual 
fees  fixed  by  the  statute  as  may  be 
proper. 

The  report  of  the  commissioners  de- 
signating the  boundaries  of  the 
several  lots,  with  the  map,  consti- 
tutes the  usual  return  ;  but  the  cost 
of  making  a  field  book  will  be  al- 
lowed. 

A  charge  for  drawing  the  return  is 
proper. 

The  cost  of  a  copy  of  the  return  for 
record  in  the  county  clerk's  office 
allowed  in  this  case. 

A  share  may  be  subdivided  on  par- 
tition, and  the  costs  thereof  will 
be  charged  ou  that  share.  Coles  v. 
CoUs,  367 


PARTNERSHIP. 

1.  When  a  partnership  is   dissolved 
by  mutual  consent,  or  determined 
by   the    will   of   either   party,    a 
Court  of  Chancery  will  not  as  of 
course  assume  the  control  of  the 
business,  and  place  it  in  the  hands 
of  a  receiver.     This  course  will  be 
taken  only  where  it  appears  neces- 
sary to  protect  the  interest  of  the 
parties.     Cox  v.  Peters  and  John- 
son, 39 

2.  Partnership  property  must  first  be 
applied    to   the   payment    of   the 
partnership  debts.  The  individual 
creditors  are  entitled  only  to  share 
the  net  residue  after  the  debts  of 
the  partnership  are  satisfied. 

Real  estate,  although  the  title  stands 
in  the  names  of  the  individuals 
composing  the  firm,  if  purchased 
with  the  money  and  for  the  uses 
of  the  firm,  belongs  to  the  part- 
nership, and  is  liable  in  the  first 
place  to  the  partnership  debts. 

One  partner  cannot  convey  to  a  cred- 
itor of  his  own,  so  as  to  give  him 
a  preference  over  the  creditors  of 
the  firm,  his  undivided  interest 
in  the  real  estate  belonging  to  the 
firm,  although  the  title  to  such 
property  stands  in  the  individual 
names  of  the  partners — such 
grantee  having  notice  of  the  equit- 
able rights  of  the  firm  in  the 
premises.  Matlack  v.  James,  126 

3.  Refusing  to  account,  excluding  a 
co-partner    from    an    examination 
of  the  partnership  books,  and  from 
a  participation  in  the  profits  of  the 
business, although  breacliesofduty, 
do  not,  standing  alone,  call  for  the 
interposition    of  the  court  by  in- 
junction before  answer,  or  an  oj>- 
portunity    of    hearing.     Petit    v. 
CheveUer,  181 

4.  A  nice  or  doubtful  question  of  law 
will  not  be  decided  on  a  motion 
to  dissolve  an   injunction,  but  will 
be  reserved  Jor  the  final  hearing. 

An  injunction  restraining  interfer- 
ence with  the  complainant  in  the 
exercise  of  his  rights  as  a  partner 


588 


INDEX. 


of  the  defendants  will  be  dissolved 
on  the  clear  averment  in  the  an- 
swer, that  the  partnership  was  dis- 
solved by  mutual  consent. 

Can  a  corporation  enter  into  a  co- 
partnership ?  Query.  Van  Kuren 
v.  Trenton  L.  Co.,  302 


PLEADING. 

1.  After  decree,  if  the  defendant  or 
his  representative  have  an  interest 
in  the  further  prosecution  of  the 
suit,  the  suit  may  be  revived  at  his 
instance. 

A  defendant  having  a  beneficial  in- 
terest may  exhibit  a  bill  of  revivor 
for  the  purpose  of  appealing  from 
decree. 

The  mere  fact  that  three  years  have 
elapsed  since  the  signing  of  decree 
cannot  be  set  up  on  demurrer  to 
the  bill  of  revivor. 

The  objection  arising  from  lapse  of 
time  is  a  mere  matter  of  limita- 
tion, which  must  be  pleaded,  even 
though  the  objection  appear  upon 
the  record.  Peer  v.  Cookerow,  136 

2.  Matters  which  are  known  to  com- 
plainant before  the  decree  in  the 
original    suit   will   not  support  a 
supplemental  bill,  nor  will  matters 
which  have  arisen  since,  if  they 
are   merely   cumulative   evidence 
of  the  charges  in  the  original  bill. 

That  a  supplemental  bill  is  filed 
without  authority  of  the  court  is 
not  matter  of  demurrer,  though  it 
may,  on  that  ground,  in  the  dis- 
cretion of  the  court,  be  dismissed. 

The  supplemental  bill  in  this  case 
held  to  be  multifarious.  Barricklo 
v.  The  Trenton  Mutual  Insurance 
Company,  154 

3.  If  a  bill  unite  a  demand  of  several 
matters  of  distinct  natures  against 
different  defendants,  it  is  demurra- 
ble  for  multifariousness. 


So  if  a  joint  claim  against  two  de- 
fendants is  joined  in  the  same  bill 
with  a  separate  claim  against  one 
of  them  only,  either  or  both  of  the 
defendants  may  demur  for  multr- 
fariousness.  Emans  v.  Wortman, 

205 

4.  A  bill  of  interpleader  will  not  be 
sustained    unless   there  is  a  well- 
founded   apprehension    of  danger 
from  conflicting  claims  to  the  fund 
in  dispute. 

Under  the  circumstances  of  this  case 
the  bill  was  retain.ed,  but  no  costs 
allowed  out  of  the  fund.  Jilair  v. 
Porter,  267 

5.  On  bills  of  interpleader,  the  court 
disposes  of  the  questions   arising 
in  various  modes,  according  to  the 
nature   of   the    question    and    the 
manner  in  which  it  is  brought  be- 
before  the  court. 

[f,  at  the  hearing,  the  question  be- 
tween the  defendants  is  ripe  for 
decision,  the  court  will  decide  it 
and  pronounce  a  h'nal  decree.  Ex- 
ecutors of  Condict  v.  King,  375 

6.  A   bill   setting   up    an    equitable 
claim  to  the  land    in   the  widow, 
and    praying    that   if  that   claim 
shall  fail  that  dower  may  be  as- 
signed, is  not  multifarious.     Rock- 
well v.  Morgan,  384 

7.  Where  husband  and  wife  are  made 
defendants,  the  complainant  is  en- 
titled to  their  joint  answer.     Col- 
lard  v.  Smith,  43 

8.  Evidence  relative  to  matters  not 
stated  in  the  pleading  is  imperti- 
nent.    Vansciver  v.  Bryan,         434 


PRACTICE. 

1.  Bill  amended  after  final  hearing. 
Damson  v.  Daviaon,  246 

2.  A  decree  will  not  be  opened  on  the 
unsupported  affidavit  of  a  defend- 
ant that  the  complainant  verbally 
agreed  not  to  prosecute  the  action. 
Marsh  v.  Lasher,  253 


INDEX. 


589 


3.  Where  a  defendant  is  asking,  as  a 
matter  of  favor,  to  be  permitted  to 
defend,  neither  a  court  of  law  or 
of  equity  will  grant  the  request 
if  the  defence  rests  on  the  ground 
of  usury.     Marsh  v.  Lasher,      253 

4.  On  a  bill  filed  for  an  account  and 
to  execute  the  trust  created  by  a 
deed    absolute    on     its    face,  but 
which  in  point  of  fact  was   exe- 
cuted upon  certain  trusts,  viz.,  to 
satisfy   the   debts   of  the  grantor, 
and  then  for  the  use  and  benefit  of 
his   family,  the  widow  and  heirs 
of  the  grantor  are  not  only  proper 
but  necessary  parties. 

All  persons  whose  interests  are  in- 
volved in  the  issue,  and  who  must 
necessarily  be  affected  by  the  de- 
cree, are  necessary  parties.  Pence 
v.  Pence,  257 

5.  In    a   foreclosure  suit,   when    an 
answer  has  been  filed  by  a  junior 
encumbrancer,  which  neither  de- 
nies the  amount  claimed  nor  the 
order  of  priority,  an  order  of  ref- 
erence cannot  be  made,  unless  by 
consent,  without  setting  the  cause 
down  for  hearing.     Wright  v.  Mc- 
Kean,  259 

6.  Alimony. 

Application  to  increase  or  diminish 
the  allowance  may  be  made  by 
petition.  Snover  v.  Snover,  261 

7.  When  a  cause  in  a  divorce  suit  is 
referred  to  a  master,  it  is  irregular 
to  examine  a  witness  before   an- 
other master. 

A  divorce  will  not  be  decreed  upon 
proof  that  the  husband  went  away 
and  lived  apart  from  his  wife.  A 
mere  separation  cannot  be  consid- 
ered a  desertion  within  the  mean- 
ing of  the  statute.  Cook  v.  Cook,  263 

8.  A  bill  of  interpleader  will   not  be 
sustained  unless  there  is   a  well- 
founded   apprehension   of  danger 
from  conflicting  claims  to  the  fund 
in  dispute. 

Under  the  circumstances  of  this  case 
the  bill  was  retained,  but  no  costs 

VOL  ii.  2 


allowed  out  of  the  fund.     Blair  v. 
Porter,  267 

9.  A  formal  traverse  of  material  mat- 
ters contained  in  the   bill   is  not 
sufficient  to  dissolve  an  injunction. 
The  answer  must  be  full  and  satis- 
factory. 

A  creditor,  having  exhausted  his 
remedy  by  execution  at  law,  has  a 
right  to  come  into  a  court  of  equity 
to  set  aside  a  conveyance  alleged  to 
have  been  fraudulently  made  by 
his  debtor.  Brown  v.  Fuller,  27  L 

10.  In  a  foreclosure  suit  the  subpoena 
was  returned  with  the  usual  affi- 
davit of  the  non-residence  of  the 
defendant.     It  appeared  that  the 
defendant  had  separated  from  his 
wife,  who  had  gone  with  her  child- 
ren to  her  father,  the  complainant. 
The  defendant,  after  boarding  in 
the  county   of    Hunterdon   for  a 
short  time,  left  the  state,  and  was 
confined  for  crime  in  the  peniten- 
tiary of  Pennsylvania. 

Held,  that  the  actual  domicil  of  the 
wife  was  not  the  legal  domicil  of 
the  husband,  nor  could  it  be  re- 
garded, contrary  to  the  fact,  as  his 
actual  residence  within  the  mean- 
ing of  the  statute  regulating  the 
service  of  process.  McPherson  v. 
Housel,  35 

11.  The  court  will  not  extend  the 
time  for  answering  in  order  to  ad- 
mit the  defence  of  usury. 

Where  the  time  has  been  extended 
by  order  of  the  court  without  no- 
tice to  complainant,  the  court  will 
modify  the  order,  M)  as  to  exclude 
the  defence  of  usury. 

When  after  the  time  for  answering 
has  expired,  the  complainant 
grants  an  extension,  the  defence 
of  usury  will  not  be  permitted  to 
be  Bet  up.  Contra  where  such  con- 
sent is  given  before  the  defendant 
is  in  tacfiet. 

Where  husband  and  wife  are  made 

defendants  to  a  bill  in  equity,  the 

!     husband  must  appear  for  both,  and 

O 


590 


INDEX. 


the  complainant  is   entitled   to  a 
joint  answer. 

If  the  husband  is  unable  to  put  in  a 
joint  answer,  or  if  the  wife  desire 
to  answer  separately,  or  the  hus- 
band is  not  in  a  situation  to  an- 
swer for  her,  an  order  for  a  sepa- 
rate answer  must  be  obtained. 

If  either   husband   or  wife  answer 
separately,  without  an  order  au 
thorizing  it,  such   answer  will   be 
suppressed  as  irregular. 

The  answer  must  not  only  be  joint, 
but  must  be  sworn  to  by  the  wife, 
or  it  will  be  irregular;  but  the 
irregularity  will  be  waived  by  the 
complainant  tiling  a  replication. 
Collard  v.  Smith,  43 

12.  A  decree  pro  conjesso,  signed  after 
the  time  for  answering  has  expired, 
is  regular,  though  an  order  for  fur- 
ther time  to  answer  be  signed  and 
filed    on  the   same  day  with   the 
signing  of  the  decree. 

And  when  the  order  for  time  is  made 
without  notice,  though  it  be  made 
to  appear  affirmatively  that  the 
order  was  signed  and  filed  prior 
to  the  signing  of  the  decree,  the 
compl  aiuant  will  be  entitled  to  the 
costs  of  proceeding  until  he  is 
served  with  a  copy  or  with  notice 
of  the  order. 

A  defendant  coming  in,  without  un- 
necessary delay,  by  motion  or  pe- 
tition, after  a  decree  pro  confeszo 
regularly  taken,  will,  upon  any 
reasonable  ground  of  indulgence, 
be  permitted  to  answer  upon  pay- 
ment of  costs. 

But  if  it  appear,  upon  an  examina- 
tion of  the  answer,  that  it  contains 
no  valid  ground  of  defence,  the  de- 
cree will  not  be  opened.  Emery 
v.  Downing,  59 

13.  Where  a  party  comes  into  a  court 
of  equity  seeking  relief  against  a 
usurious  contract,  he  must  offer  to 
pay  the  sum  actually  due.      Ware 
V.  Tompkins'  Administrators,       66 


14.  An  order  for  maintenance  pendente 
lite  will  not  be  made  in  behalf  of 
a  widow  on  her  Juill  for  dower. 

Upon  general  principles,  alimony  or 
maintenance  is  not  allowed  except 
as  against  the  husband  himself, 
and  that  only  as  incidental  to  a 
bill  for  divorce  or  other  relief 
against  the  husband.  Rockwell  v. 
Morgan,  119 

15.  After  a  decree  pro  confesso,  order 
of  reference,  arid  report  of  master, 
the  decree  will  be  opened,  and  the 
defendant  let  in  to  answer,  if  the 
equity  of  the  case  requires  such  re- 
laxation of  the  rules  of  the  conrt. 
Williamson  v.  Sykes,  182 

10.  Where  it  appears  that  by  the 
judgment  of  a  court  in  another 
state  between  the  same  parties,  all 
the  material  matters  of  equity  re- 
lied upon  by  the  complainant  in 
his  suit  in  this  court  are  adjudica- 
ted and  settled,  the  bill  of  com- 
plaint will  be  dismissed. 

A  court  of  equity  will  not  permit  a 
party  who  has  had  his  rights  fully 
investigated  and  decided  in  a 
court  of  equity  in  another  state  to 
avoid  a  final  decision  in  that  tri- 
bunal, and  to  raise  for  re-investi- 
gation the  same  questions  on  the 
same  facts.  Brown  v.  Lexington 
and  Danvilte  Railroad  Co.,  191 

17.  In  practice,  commissioners  ap- 
pointed to  appraise  damages  and 
value  lands  taken  by  incorporated 
companies  by  force  of  their  char- 
ters have  frequently,  if  not  uni- 
formly, united  the  value  of  the 
land  and  the  damages  in  the  same 
sum  without  discrimination. 

The  better  practice  would  be  to  dis- 
tinguish the  value  of  the  land  from 
the  damages. 

It  is  well  settled  that  the  appraise- 
ment includes  prospective  dam- 
ages resulting  naturally  and  di- 
rectly from  the  works  of  the  com- 
pany for  all  time  to  come.  Trenton 
Water  Power  Co.  v.  Chambers,  19l» 


INDEX. 


591 


18.  A  cor|>oration  aggregate  must  an- 
swer under  the  seal  of  the  corpor- 
ation. 

They  may  adi,pt  and  use  any  seal 
pro  hue  vice, 

If  the  se:il  is  dispensed  with,  it 
should  be  by  leave  of  the  court 
previously  obtained  and  for  good 
cause  shown.  Ransom  v.  Stoniny- 
ton  Savings  Hank,  212 

19.  On  bills  to  restrain  the  execution 
of  process  or  the  performance  of 
official  acts,  the  sheriff  is  made  a 
party,  as  the  design  of  the  injunc- 
tion ia  to  restrain   him  from  act- 
ing ;  but  where  no  relief  is  prayed, 
and   no  decree  asked  against  the 
officer,  it    is    not    necessary,    nor 
usually  expedient,  for  the  sheriff 
to  answer.     Brooks  v.  Lewis,     214 

20.  After    the    testimony   has    been 
closed  and  the  cause  regularly  set 

down  for  final  hearing,  the  court 
will  not  permit  a  supplementary 
answer  to  be  put  in,  unless  the  de- 
lay is  satisfactorily  accounted  for. 

It  should  appear  that  the  matter  of 
the  supplementary  answer  is  new, 
or  a  sufficient  reason  given  for  not 
having  it  in  the  original  answer. 

The  mortgage  sought  to  be  foreclosed 
was  given  to  secure  part  of  the 
consideration  on  the  purchase  of 
the  mortgaged  premises.  The  title 
to  a  part  of  the  premises  failed. 
The  complainants  were  not  the 
vendors  of  the  premises  nor  the 
original  mortgagees.  They  held 
the  mortgage  by  assignment,  exe- 
cuted prior  to  the  sale  of  the  pre- 
mises by  the  original  mortgagor 
to  the  defendant.  Under  these  cir- 
cumstances, the  fact  that  the  title 
made  by  the  mortgagor  to  the  de- 
fendant, the  present  owner,  was 
defective,  can  in  no  wise  affect  the 
rights  of  a  bona  fide  mortgagee 
under  a  mortgage  executed  prior 
to  the  conveyance,  timallwood  v. 
Lewin,  123 

21.  If  no  replication  has  been  filed, 
the  facts  stated  in  the  answer  must 
be  taken  as  true  on  the  hearing. 


A  decree  rendered  against  the  com- 
plainant was  opened,  upon  it  ap- 
pearing that  the  can-e  had  been 
submitted  to  the  court  by  tins 
counsel  of  the  complainant  under 
the  misapprehension  that  an  un- 
swer  to  the  replication  had  been 
tiled. 

Had  the  counsel  upon  both  Bides 
acted  under  the  same  misappre- 
hension, and  the  evidence  iti  the 
cause  been  taken,  the  filing  of  the 
replication  would  have  been  re- 
garded as  a  mere  form,  and 
would  have  been  permitted  at  the 
hearing  as  a  matter  of  course. 
GaskUl  v.  Sine,  130 

22.  After  decree,  if  the  defendant  or 
his  representative  have  an  interest 
in  the  further  prosecution  of  the 
suit,  the  suit  may  be  revived  at  hia 
instance. 

A  defendant  having  a  beneficial  in- 
terest may  exhibit  a  bill  of  revivor 
for  the  purpose  of  apj»ealing  from 
decree. 

The  mere  fact  that  three  years  have 
elapsed  since  the  signing  of  decree, 
cannot  be  set  up  on  demurrer  to 
the  bill  of  revivor. 

The  objection  arising  from  lap^e  of 
time  is  a  mere  matter  of  limita- 
tion, which  must  be  pleaded,  even 
though  the  objection  appear  upon 
the  record.  Peer  v.  Cuokeroie,  13t> 

23.  After   a  Bale  on  foreclosure,  the 
court  will  compel  the  mortgagor, 
or  any  person  who  has   come   in 
possession  under  him  pending  the 
suit,  or  whose  title  is  not  superior 
to  his,  to  deliver  up  the  possession 
of  the  premises,  and  will  not  drive 
the  purchaser  to  an  action  of  eject- 
ment. 

And  this  assistance  will  be  extended 
to  a  stranger  to  the  record  purchas- 
ing at  such  sale  aa  well  as  to  the 
mortgagee. 

The  mode  of  proceeding  has  been  as 
follows,  viz. :  1,  a  demand  of  po* 
f-e-sinii  by  the  purchaser  of  the  ten- 
ant in  possession  accompanied  bj 


592 


INDEX. 


an  exhibit  of  the  deed  from  the 
(sheriff  or  master ;  2,  order  to  de- 
liver possession ;  3,  injunction ; 
and  4,  writ  of  assistance. 

The  exercise  of  the  power  rests  in  the 
sound  discretion  of  the  court.  It 
will  never  be  exercised  in  a  case 
of  doubt,  nor  under  color  of  its  ex- 
ercise will  a  question  of  legal  title 
be  tried  or  decided.  Sckenck  v. 
Conover,  220 

24.  Where  a  bill  has  been  dismissed 
or  demurrer  allowed,  and  another 
bill  is  filed  for  the  same  matter, 
this  court  will  stay  proceedings  in 
the  second  suit  till  the  costs  of  the 
former  are  paid.      Updike  v.  Bart- 
le»,  231 

25.  In  case  a  bill  for  a  specific  per- 
formance of  an  agreement  for  the 
sale  of  land,  containing  averments 
of  a  parol  enlargement  of  the  time 
of  payment,    possession,   and    the 
erection    of   permanent   improve- 
ments, the  injunction  will   be  dis- 
solved upon  the  filing  of  an  answer 
denying  those  averments. 

It  is  not  necessary  that  affidavits  an- 
nexed to  answers  should  be  taken 
upon  notice,  or  that  copies  should 
be  served  on  the  adverse  party. 

Where  a  motion  is  made  to  dissolve 
sin  injunction  upon  the  answer, 
affidavits  annexed  to  the  answer 
can  only  be  read  in  reply  to  affi- 
davits annexed  to  the  bill.  Gams 
v.  Gams,  320 

26.  The  terms  of  a  contract  must  be 
clearly    proved  before  a  party  is 
entitled   to   a  decree   for  specific 
performance.     Lockerson  v.   Still- 
well,  •  357 

27.When  the  ends  of  justice  require 
it,  the  injunction  will  be  continued 
to  the  hearing. 

If  the  defendant  is  absient  from  the 
country,  his  oath  to  the  answer 
must  be  taken  under  a  commis- 


Affidavits  annexed  to  an  answer  need 
not  be  taken  on  notice,  nor  is  it 
necessary  to  serve  copies,  unless 


in  special  case",  unde   the  rules  of 
the  court.     Stotesbury       Vail,  390 

28.  An  order  to  deliver  possession  to 
the  purchaser  of  mortgaged  premi- 
ses sold  under  a  decree  of  fore- 
closure will  be  made  only  upon 
notice  of  the  application  and  proof 
that  the  deed  was  shown  to  the  ten- 
ant, that  a  demand  of  possession 
was  made,  and  that  the  tenant  re- 
fused to  comply. 

The  injunction,  as  well  as  the  attach- 
ment to  enforce  obedience  to  the 
order,  is  disused. 

Under  the  present  practice,  the  writ 
of  assistance  does  not  issue  of 
course,  but  upon  notice  of  the  ap- 
plication and  proof  of  the  services 
of  the  order  to  deliver  possession 
and  refusal  to  obey.  Fackler  v. 
Worth,  395 

29-  To  effect  a  regular  service  of  an 
injunction,  the  writ  itself,  under 
the  seal  of  the  court,  must  be  shown 
to  the  party  against  whom  it  issues, 
and  a  true  copy  thereof  delivered 
to  him. 

4k 

Personal  service  will  be  dispensed 
with  where  the  party  is  out  of  the 
state  or  cannot  be  found. 

The  modern  practice  is  for  the  court, 
by  special  order,  to  dispense  with 
personal  service  where  the  defend- 
ant avoids  the  service  of  the  writ, 
or  other  circumstances  render  such 
order  necessary  or  proper. 

The  court  will  punish  the  violation 
of  its  order  for  the  injunction, 
though  the  writ  he  not  served,  if 
it  appear  that  the  defendant  knew 
of  its  existence. 

Where  the  defendant  and  his  wife 
were  non-residents,  and  the  injunc- 
tion was  served  out  of  the  state  on 
the  husband,  and  proof  was  made 
that  the  wife  could  not  be  found, 
an  order  was  made  that  euch  ser- 
vice should  be  deemed  valid,  and 
directing  a  copy  of  such  order  to 
be  served  at  the  dwelling-house  of 
the  defendants.  Having  v.  Kauff- 
man,  397 


INDEX. 


593 


30.  Where  the  complainant,  being  a 
corporation,     sues    by    a    wrong 
name,  the  bill  may  be  amended  in 
this  respect  at  the  hearing.     Ho- 
bolcen  Building  Association  v.  Mar- 
tin, 427 

31.  The  object  of   an  issue  out  of 
chancery  to  be  tried  by  a  jury  is  to 
inform  the  conscience  of  the  Chan- 
cellor, and  it  is  his  province  to  de- 
termine  what   evidence  shall   be 

.  read   before  the   jury.     Black   v. 
Shreoe,  456 

32.  The  action  of  the  Chancellor  on 
the  verdict  is  a  matter  resting  in 
his  discretion,  and  is  not  subject 
to  review  in  the  appellate  court. 

76. 


33.  Where  a  sole  defendant  lives  out  | 
of  the  state,  and  no  foreign  publi- 
cation is  ordered  or  notice  given  to 
the  defendant,  costs  on  opening 
the  decree  ordered  to  abide  the 
event  of  the  court.  Oram  v.  Den- 


nison, 


438 


PURCHASER. 


made  by  an  administrator,  or  any 
other  acting  in  a  fiduciary  capaci- 
ty, to  himself  or  for  hin  benefit, 
will  be  held  w>id  at  the  instance 
of  the  party  prejudiced. 

The  remedy  in  equity  is  to  set  aside 
the  sale  on  equitable  terms,  and  to 
treat  the  administrator  as  a  trustee 
for  the  parties  in  interest.  Hous- 
ton v.  Cassidy,  223 


SPECIFIC  PERFORMANCE. 

The  terms  of  a  contract  must  be 
clearly  proved  before  a  party  is 
entitled  to  a  decree  for  specific 
performance.  Lockerson  v.  Still- 
well,  357 


Set  VENDOR  AND  PURCHASER. 


RECEIVER. 

When  a  partnership  is  dissolved  by 
mutual  consent,  or  determined  by 
the  will  of  either  party,  a  Court  of 
Chancery  will  not  as  of  course  as- 
sume the  control  of  the^nisiness, 
and  place  it  in  the  hands  of  a  re- 
ceiver This  course  will  be  taken 
only  where  it  appears  necessary  to 
protect  the  interest  of  the  parties. 
Cox  v.  Peters  and  Johnson,  39 

In  matters  of  receivers'  accounts. 
Holcombe  v.  Extra  of  Holcombe,  417 


REMAINDER. 

When  held  to  be  vested.     Price  v. 
6'isson,  168 

SALE, 

Tbe   rule  is  inflexible,  that   a   sale 


Courts  of  equity  may,  in  the  exer- 
cise of  a  sound  discretion,  refuse  to 
decree  the  specific  performance  of 
a  hard  bargain. 
« 

A  father,  having  conveyed  his  entire 
estate  to  his  children,  upon  their 
stipulating  to  provide  for  their 
parents  a  comfortable  support  and 
maintenance  suitable  to  their  con- 
dition, wherever  they  or  either  of 
them  might  choose  to  reside,  a  spe- 
cific performance  of  the  contract 
was  decreed  in  his  favor.  Chubb 
v.  Peckham,  207 

See  Gariss  v.  Gariss,  320 


STATUTES. 

l.A  mortgagee  is  a  purchaser  within 
the  statute  of  frauds.  Lavalette  v. 
Thompson,  274 

2.  Every  statute  is  by  implication  a 
repeal  of  all  prior  statutes,  so  far 
as  it  is  repugnant  thereto. 

If  a  subsequent  statute  be  not  re- 
pugnant in  all  its  provisions  to  a 
prior  one,  yet  if  it  was  clearly  in- 
tended to  prescribe  the  only  rule 
that  should  govern  in  the  case  pro- 
vided for,  it  repeals  the  original 
act. 

But  unless  the  latter  statute  is 
manifestly  inconsistent  with  and 


594 


INDEX. 


repugnant  to  the  former,  both  re- 
main in  force. 

There  is  nothing  in  the  act  to  estab- 
lish the  city  of  Elizabeth  which 
expressly  or  by  necessary  implica- 
tion supersedes  the  trustees  of  the 
incorporated  school  district  or  ab- 
rogates their  rights  of  property. 
Industrial  School  District  v.  White- 
head,  290 

3.  By  the    New    Jersey   statute    of 
March  12th,  1851,  the  words  "  dy- 
ing without  issue  "  are  made  to  de- 
note a  definite  failure  of  issue.  Ex- 
ecutors of  Condict  v.  King,          375 

4.  A    parol    surrender    of    demised 
premises,  although  invalid  at  law 
by  reason  of  the  statute  of  frauds, 
will  be  sustained  in  equity  when 
consummated  by  a  delivery  of  the 
counterpart  of  the  lease,  the  key 
of  the  dwelling,  and  the  posses- 
sion of  the  premises  to  the  land- 
lord.   Stotesbury  v.  Vail,  390 

5.  Liabilities  voluntarily  incurred  by 
a  married  woman  will  be  charged 
upon  her  separate  estate,  but  she 
cannot  by  her  contract  make  her- 
self personally  liable. 

The  act  of  1857,  which  provides  that 
a  feme  covert  may  covenant  as  to 
the  title  of  her  lands,  affords  the 
strongest  legislative  construction 
that  the  act  of  1852  does  not  by 
necessary  implication  confer  upon 
her  the  right  to  dispose  of  her  real 
estate,  or  to  make  contracts  in 
regard  to  it. 

A  contract  entered  into  by  a  married 
woman  for  the  sale  of  her  estate 
cannot  be  enforced. 

But  equity  will  charge  her  separate 
property  with  the  re-payment  of 
money  advanced  to  the  wife,  at  her 
instance  and  for  her  benefit,  or  on 
account  of  her  estate.  Pentz  v.  Si- 
monson,  232 

6.  The    act    of  20th    March,   1860, 
giving   the    custody   of   children 
under  seven   years  of  age  to  the 
mother,   is    not    unconstitutional. 
Bennett  v.  Bennett,  114 


7.  Mechanics'  lien  under  the  statute 
takes    priority  upon    the   building 
over   a  prior  mortgage  upon   the 
land.     Newark  Lime   and    Cement 
Co.  v.  Morrisson,  133 

8.  By  force  of  the  statute,  a  decree 
directing  a  conveyance  to  be  made 
vests  the  estate.  Price  v.  Sisson,  168 

9.  A  loan  made  on  the  8th  of  May, 
1856,   the  lender  living  in  Essex 
and   the   borrower  in   Middlesex, 
the  land  lying  in  the  latter  county, 
held  not  to  be  usurious  as  the  law 
then  stood.     Marsh  v.  Lasher,  254 

10.  See  USURY,  4. 


STOCK. 

Shares  in  a  "corporation  whose  char- 
ter provides  that  the  capital  stock 
of  the  company  shall  be  deemed 
personal  estate,  and  "  be  transfer- 
able upon  the  books  of  the  said 
corporation,"  can  be  effectually 
transferred  as  collateral  security 
for  a  debt,  as  asrainst  a  creditor 
of  the  bailor  who  attaches  them 
without  notice  of  any  transfer,  by 
a  delivery  of  the  certificates  there- 
of, together  with  a  blank  irrevo- 
cable power  of  attorney  for  the 
transfer  thereof  from  the  bailor  to 
the  bailee. 

M.  delivered  to  the  complainants  the 
certificates  of  certain  stock  of  a 
corporation,  accompanied  by  a 
power  of  attorney  irrevocable  for 
the  transfer  thereof,  as  collateral 
security  for  certain  of  his  notes, 
and  the  renewals  thereof.  The 
charter  of  said-  corporation  pro- 
vided that  its  capital  stock  should 
be  deemed  personal  estate,  and  "  be 
transferable  upon  the  books  of  said 
corporation:"  and  further,  "that 
books  of  transfer  of  stock  should 
be  kept,  and  should  be  evidence  of 
the  ownership  of  said  stock  in  all 
elections  and  other  matters  sub- 
mitted to  the  decision  of  the  stock- 
holders of  said  corporation."  A 
creditor  of  M.  then  levied  an  at- 
tachment upon  this  stock.  Held, 
that  the  transfer  to  the  complain- 


INDEX. 


695 


ants  was  effectual  as  against  such 
attaching  creditor.  The  Broadway 
Bank  v.  McElralh,  24 

STREET. 

See  INJUNCTION. 
NUISANCE. 


SUBROGATION. 

To  entitle  a  party  who  pays  the 
debt  of  another  to  the  rights  of  the 
creditor  by  subrogation,  the  debt 
must  be  paid  at  the  instance  of 
the  debtor,  or  the  person  paying  it 
must  be  liable  as  surety  or  other- 
wise for  its  payment.  Wilson  v. 
Brown,  277 


SURRENDER. 

A  parol  surrender  of  demised  premi- 
ses, although  invalid  at  law  by 
reason  of  the  statute  of  frauds,  will 
be  sustained  in  equity  when  con- 
summated by  a  delivery  of  the 
counterpart  of  the  lease;  the  key 
of  the  dwelling,  and  the  posses- 
sion of  the  premises  to  the  land- 
lord. 

In  such  case  the  court  will  enjoin 
the  collection  of  the  after-accruing! 
rent.  Slotesbury  v.  Vail,  390 


TENDER. 

Must  be    unconditional. 
VaU, 


Moore  v. 
299 


TRUSTEES  AND  TRUSTS. 

l.The  law  is  well  Fettled  in  this 
slate,  that  when  executors  jointly 
settle  their  final  account,  they  are 
jointly  liable  for  the  balance  so 
ascertained. 

In  such  case  the  parties  interested 
may  rely  on  the  settlement,  and 
are  not  driven  to  a  discovery  in 
whose  hands  the  funds  are,  or  in 
what  proportion  the  executors  are 
liable. 


If  a  trustee,  by  his  own  negligence, 
suffers  his  co-trustee  to  receive  and 
waste  the  trust  fund,  when  he  had 
the  means  of  preventing  such  re- 
ceipt and  waste  by  the  exercise  of 
reasonable  care  and  diligence,  he 
will,  in  such  case,  be  held  person- 
ally responsible  for  the  loss.  .La- 
roe  v.  Douglass,  308 

2.  Amount  of  commission  to  be  al- 
lowed guardian  and  receivers. 

A  trustee  has  no  right  to  subject  the 
trust  fund  unnecessarily  to  charges 
for  counsel  fees.  Holcombe  v.  llnl- 
combe,  415 

3.  A  conveyance  to  the  grantees  and 
their    heirs,   for   the    use   of    the 
grantees  and  their  heirs  in  trust 
for  the  persons  beneficially  inter- 
ested, does  not  vest  the  legal  es- 
tate in  the  latter  by  virtue  of  the 
statute  for   transferring  uses  inio 
possession.     Price  v.  Sisson,       168 

A.  When  the  deed  is  thus  technically 
drawn,  the  trustees  take  the  legal 
estate  by  virtue  of  the  limitation, 
without  the  aid  of  any  reasoning 
derived  from  the  nature  of  the  es- 
tate. Ib. 

5.  In  construing  limitations  of  trust?, 
courts  of  equity  adopt  the  rule  of 
law  applicable  to  legal  estates.  76. 


USURY. 

1.  The  court  will  not  extend  the 
time  for  answering  in  order  to  ad- 
mit the  defence  of  usury. 

Where  the  time  has  been  extended 
by  order  of  the  court  without  no- 
tice to  complainant,  the  court  will 
modify  the  order,  so  as  to  exclude 
the  defence  of  usury. 

When,  after  the  time  for  answering 
has  expired,  the  complainant 
grants  an  extension,  the  defence 
of  usury  will  not  be  permitted  to 
be  set  np.  Contra  where  such  con- 
sent is  given  before  die  defendant 
is  in  laches. 


596 


INDEX. 


Where  husband  and  wife  are  made 
defendants  to  a  bill  in  equity,  the 
husband  must  appear  for  both,  and 
the  complainant  is  entitled  to  a 
;oint  answer. 

If  the  husband  is  unable  to  put  in  a 
joint  answer,  or  if  the  wife  desire 
to  answer  separately,  or  the  hus- 
band is  not  in  a  situation  to  an- 
swer for  her,  an  order  for  a  sepa- 
rate answer  must  be  obtained. 

If  either  husband  or  wife  answer 
separately,  without  an  order  au- 
thorizing it,  such  answer  will  be 
suppressed  as  irregular. 

The  answer  must  not  Only  be  joint, 
but  must  be  sworn  to  by  the  wife,' 
or  it  will  be  irregular;  but  the! 
irregularity  will  be  waived  by  thej 
complainant  filing  a  replication.! 
Collard  v.  Smith  and  wife,  43 


2.  A  bond  valid  in  its  inception  is 
not  rendered  invalid  by  the  subse- 
quent receipt  of  usurious  interest. 

If,  after  the  completion  of  the  con- 
tract, a  part  of  the  loan  is  with- 
held a*  a  premium  for  the  loan, 
in  violation  of  the  agreement,  the, 
contract  is  not  thereby  rendered 
usurious. 

Where  a  party  comes  into  a  court  of 
equity  seeking  relief  against  a 
usurious  contract,  he  must  offer  to 
pay  the  sum  actually  due.  Ware. 
v.  Thompson's  Administrators,  66 

3.  Where  a  defendant  is  asking,  as  a 
matter  of  favor,  to  be  permitted  to 
defend,  neither  a  court  of  law  or 
of  equity  will  grant  the  request 
if  the  defence  rests  on  the  ground 
of  usury. 

Usury  is  not  regarded  as  an  equitable 
defence. 

A  loan  made  at  seven  per  cent,  on 
8th  of  May,  1856,  the  lender  liv- 
ing in  Essex  and  the  borrower  in 
Middlesex,  the  land  lying  in  the 
latter  county,  held  not  to  be  usuri- 
ous as  the  law  then  stood.  Marsh 
v.  Lasher,  253 


4.  To  legalize  the  taking  of  seven  per 
cent,  interest  on  contracts  by  vir- 
tue of  the  supplements  to  the  act 
concerning  usury,  the  contract 
must  be  actually  made  within  one 
of  the  districts  specified  in  the  act. 
McMurtry  v.  Giveans,  351 


VENDOR  AND  PURCHASER. 

1.  An  innocent  purchaser  is  not  lia- 
ble to  a  latent  equity  of  which  he 
was  ignorant.    Lavaletle  v.  Thomp- 
son, 274 

2.  A  mortgagee  is  a  purchaser  within 
the  statute  of  frauds.  Ib. 

3.  Where  the  owner  of  a  spring  lot, 
and  of  a  paper  mill   on  another 
tract,  by  an. artificial  arrangement 
conveys  the  water  to  the  mill,  and 
then  sells  the  spring  lot,  the  pur- 
chaser takes  it  subject  to  the  bur- 
then. 

The  principle  is,  that  where  the 
owner  of  two  tenements  sells  one 
of  them,  the  purchaser  takes  the 
tenement,  or  portion  sold,  with  all 
the  benefits  and  burthens  which 
appear  at  the  time  of  the  sale  to 
belong  to  it,  as  between  it  and  the 
property  which  the  vendor  retains. 
Seymour  v.  Lewis,  439 

4.  Where  one  purchases  land,  and  as- 
sumes in  hisdeed  to  pay  off  a  bond 
and  mortgage   of  his  grantor   to 
which    such   land    is    subject,    he 
thereby  becomes   a   surety  in  re- 
spect to  the  mortgage  debt.    JKlap- 
worth  v.  Dreader,  62 


WIDOW. 

.In  proceedings  for  partition,  where, 
after  a  sale  of  the  premises,  the 
widow,  who  was  entitled  to  dower 
therein,  had  agreed  in  writing 
under  her  hand  and  seal,  accord- 
ing to  the  statutes  of  this  state,  to 
accept  in  lieu  of  her  said  dower 
such  sum  in  gross  as  the  Chancel- 
lor should  deem  reasonable,  and 
then  having  died  before  distribu- 
tion, it  was  held  that  the  right 


INDEX. 


597 


vested  in  the  widow  to  receive  a1. 
turn  in  gross,  interest  could  not  bej 
divested  by  her  death,  but  should 
go  to  her  children.  Held  further,] 
that  the  value  of  the  widow's  in-; 
terest  should  be  ascertained  on  the 
principles  of  life  annuities. 

Where  the  estate  is  ordered  to  be 
gold,  and  the  widow  agrees  to  ac- 
cept a  gross  sum  in  lieu  of  dower, 
and  she  dies  before  a  sale  of  the 
premise!*,  her  estate  is  determined 
by  her  death,  and  her  children  can 
have  no  claim  to  any  portion  of 
the  proceeds  of  the  sale.  Mulford 
and  wife  v.  Hiers,  13 


WILLS. 

1.  Where  the  terms  of  a  bequest  of 
personalty  are  such  as  would,  in  a 
devise  of  real  estate,  create  an  es- 
tate tail  in  the  devisee,  it  operates 
as  an  absolute  gift  of  the  person- 
alty, and  a  bequest  over  on  the 
failure  of  issue  of  the  first  taker  is 
void. 

Where  the  gift  is  to  A  and  his  issue, 
or  to  A  and  the  heirs  of  his  body, 
and  the  limitation  over  is  upon  an 
indefinite  failure  of  issue,  the  estate 
vests  absolutely  in  the  first  taker. 

But  where  the  limitation  over  is 
upon  a  definite,  not  an  indefinite 
failure  of  issue,  the  first  legatee 
takes  an  estate  for  life  only,  and 
the  limitation  over  is  good.  And  it 
is  immaterial  in  such  case  whether 
the  gift  to  the  first  taker  be  of  the 
subject  itself  or  only  of  the  use. 

The  law  requires  wills,  both  of  real 
and  personal  estate,  to  be  in  writ- 
ing, and  parol  evidence  is  not  ad- 
missible to  add  to,  contradict,  or 
vary  their  contents.  Cleaveland  v. 
Havens, 

2.  Words  in  a  will,  which  if  applied 
to  real  estate  would  create  an  es- 
tate tail,  will  vest  personal  estate 
absolutely  in  the  legatee. 

Consequently  a  bequest  of  personal 
property  to  take  effect  on  the  death 


of  the  first  legatee  without  insue,  or 
on  the  failure  of  heirs  of  his  body, 
without  other  restriction,  is  too 
remote. 

But  it  is  equally  well  settled  that  a 
legacy  of  a  chattel  interest  gene- 
rally, or  for  life,  or  for  any  num- 
ber of  lives  in  being,  and  limita- 
tion over  upon  the  failure  of  issue 
confined  to  twenty-one  years  after 
a  life  in  being,  is  good. 

A  testator  bequeathed  the  interest  of 
the  fund  to  his  wife  during  her 
life,  and  upon  her  death  he  grave 
the  fund  to  his  two  sisters,  Eliza 
and  Susan,  ia  equal  shares,  "dur- 
ing their  life.ime,"  and  upon  the 
death  of  eithei  of  them  to  the  sur- 
vivor, "for  her  lifetime;"  but  if 
both  or  either  of  them  should  die 
leaving  a  child  or  children,  th* 
share  of  each,  "to  bequeathed  for 
her  lifetime  only,"  to  go  to  her 
child  or  children.  If  one  should 
die  leaving  a  child  or  children,  and 
the  other  should  uie  leaving  no 
child,  the  shares  of  \>oth  to  go  to 
such  child  or  childien.  If  both 
should  die  "  leaving  no  heir  or 
heirs,  the  shares  of  both  to  go  to 
the  children  of  testator'*  sister  Au- 
gusta ;  but  should  she  have  no 
children  living  at  the  time  the 
above-bequeathed  proper.y  should 
have  lawfully  gone  from  the  pos- 
session of  the  testator's  wife,  and 
also  from  the  possession  of  either 
or  both  of  her  sisters,  Eliza  and 
Susan,  then  the  propertj  be- 
queathed to  become  the  property 
of  all  the  other  legal  representa- 
tives of  the  testator." 

Held,  that  the  bequest  over  upon  the 
death  of  the  testator's  sisters  was 
not  upon  their  deitk  without  issitg 
or  upon  the  failure  of  issue,  but 
upon  their  dving  "leaving  no 
children,"  and  that  those  terms 
import  leaving  no  children  at  the 
death  of  the  legatee. 

Also,  the  bequest  being  upon  the 
death  of  either  of  the  sisters  with- 
out issue  " to  the  turrivors"  h  im- 
ports that  the  testator  inteuded 
the  bequest  to  take  effect  upon  a 


598 


INDEX. 


definite  failure  of  issue,  and  con 
sequently  the  sisters  take  only  the 
use  of  the  fund  for  life.  Fairclild 
V.  Crane,  105 

3.  Testatrix  was  possessed  of  personal 
and  real  estate,  and  by  her  will  di- 
rected the  latter  should  be  sold  by 
her  executors,  and  after  giving 
numerous  pecuniary  legacies,  prin- 
cipally among  her  relatives  and 
the  relatives  of  her  deceased  hus- 
band, she  added,  "  and  if  there  is 
anything  over  and  above  left,  let 
it  be  equally  divided  among  all 
the  heirs." 

Held,  that  the  word  heirs,  in  the 
above  connection,  aieans  "  next  of 
kin." 

Where  money  or  personal  property 
is  bequeathed  to  the  heirs  of  A 
or  to  the  heirs  of  the  testator,  if 
there  be  nothing  in  the  will  show- 
ing that  the  testator  used  the  word 
in  a  differed  sense,  the  next  of  kin 
are  entitled  to  claim  under  the 
description  as  the  persons  ap- 
pointed bv  law  to  succeed  to  per- 
sonal propertv. 

It  is  also  a  well-settled  rule  in  equity 
that  where  lands  are  directed  to  be 
converted  into  money,  and  the 
proceeds  given  as  a  legacy,  it  will 
be  treated  as  a  legacy  of  personal 
estate. 

Where  the  property  under  a  bequest 
passes  to  the  persons  entitled  un- 
der the  statute  of  distributions  to 
receive  it,  in  the  absence  of  any 
express  directions  in  the  will,  it 
will  go  in  the  proportions  pre- 
scribed by  the  statute.  In  such 
case,  where  they  are  not  all  in 
equal  degree,  the  children  of  a  de- 
ceased parent  will  take  by  right  of 
representation  per  stirpes,  and  not 
per  capita. 

But  in  this  case,  the  direction  being 
that  the  fund  shall  be  divided 
equally  among  all  the  heirs,  the 
direction  must  prevail,  and  the 
legatees  take  per  capita.  Scudder 
v.  Vanarsdale,  109 


4.  When  the  "interest"  or  " produce " 
of  a  fund  is  bequeathed  to  a  lega- 
tee, or  in   trust  for  him,  without 
any  limitation  as  to  continuance, 
the  principal  will  be  regarded  aa 
bequeathed  also,     Craft  and  others 
v.  The  Executors  of  Snook,          121 

5.  When  legacies  are  directed  to  be 
paid  out  of  the  estate  of  the  testa- 
tor, the  real  estate  is  charged  with 
the  legacies. 

So  when  the  lands  are  devised  to  the 
executors  who  are  directed  to  pay 
the  legacies. 

The  general  rule,  that  a  legacy  bears 
interest  from  the  time  it  is  paya- 
ble, admits  of  an  exception  where 
a  legacy  given  by  a  parent  to  a 
minor  child  is  made  payable  at  a 
future  day,  and  no  provision  is 
made  for  the  support  of  the  legatee 
in  the  meantime. 

Interest  not  allowed  under  the  lan- 
guage of  the  will  in  question  and 
the  circumstances  of  the  case.  Cox 
et  ux.  v.  Corkendall,  138 

6.  The  testator  directed  his  real  and 
personal  estate  to  be  divided  into 
fourteen  equal  parts,  and  devised 
and    bequeathed    one    fourteenth 
part  to  his  son   James,  disposing 
of  the   residue   among   his  other 
children.     By  a  subsequent  clause 
in  his   will,  the   testator   ordered 
that  from  the  value  of  the  estate 
devised    and    bequeathed   to  ^his 
children,  his  executors  should  de- 
duct,    respectively,    the     amount 
of  "  money    heretofore   paid    and 
advanced  to  or  for  either  of  my 
said  children,  or  to  either  of  the 
husbands  of  my   said    daughters, 
and  all  other  moneys  and  accounts 
in  which    they  may  be   severally 
indebted  to  me  at  the  time  of  my 
decease." 

At  the  time  of  testator's  death  James 
was  indebted  to  him. 

James'  share  in  the  land  devised  un- 
der the  will  was  claimed  by  virtue 
of  an  assignment  which  he  had 
made,  and  also  by  force  of  a  sher- 
iff's sale  under  a  judgment. 


INDEX. 


599 


Held,  that  the  claim  of  the  executor-*! 
to  deduct  the  debt-<  due  the  estate; 
from  James'  share  of  the  proceeds 
of  lands  sold  under  proceedings  in! 
partition  was  p. it-amount  to  the! 
rights  acquired  by  the  assignment; 
or  the  sheriffs  sale.  Smith  v.| 
Smith,  164 

7.  A  testator  devised  as  follows,  viz.  : 
"Item.     I    give   and  bequeath  to 
my  beloved  wife  the  use  and   ben- 
efit of  my  home  farm  on  which  I 
now  live  as  long  as  she  remains  my 
widow.     At  her   marriage  or  de- 
cease, I  will  that  the  aforesaid  far  in  | 
be  sold  at  one  or  two  years'  credit. 
Item.    I  give  and  bequeath  also  toj 
my  beloved  wife   Mary  five   hun- 
dred dollars  of  the  money  arising 
out  of  the  sale  of  said  farm."     By 
a   subsequent  clause,  the  testator 
gave   as  follows :  "  Item.     I  give 
and  bequeath  to  my  beloved  wifej 
Mary  one  hundred  dollars  out  of 
the  personal  estate." 

Held,  that  the  bequest  of  five  hun- 
dred dollars  to  the  wife  was  vested! 
at  death  of  testator,  and  at  her. 
deatli  passed  to  her  personal  rep-! 
resentatives.  Owen  v.  Owen,  188' 

8.  Where  lands  are  devised  to  a  wo- 
man and  her  children,  she  having 
children  living  at  the  time  of  the 
devise,  the  word  "  children  "  must 
be  laken  as  a  word   of  purchase, 
and  the  children  take  a  joint  es- 
tate with  the  mother.  A  provision 
that  the  devisee  shall  pay  an  an- 
nuity   for  the   life  of  another   is) 
sufficient  at  the  common  law  to  en-] 
large  a  life  estate  to  a  fee  simple. 

A  testator  bequeathed  the  rest,  resi- 
due, and  remainder  of  his  real  and 
personal  estate  tohisgrand-daugh-, 
ter  and  her  children,  provided  she' 
should  pay  to  S.  the  sum  of  $40, 
during  her  natural  life,  and  should; 
paint  and  keep  in  good  repair  the 
fence  around  his  burial  lot.  At 
date  of  will  and  at  the  death  of  the! 
testator  the  grand-daughter  had 
two  children  living,  a  son  and  a 
daughter.  In  a  previous  part  of  i 
the  will  provision  was  made  for| 
the  sou  of  the  grand-daughter,  the 


fund    being   withheld    from    him 
until  he  attained  twenty-one. 

Held,  that  the  properly  included  in 
the  residuary  clause  went  exclu- 
sively to  the  grand-daughter. 

Held  further,  that  her  estate  in  the 
lands  was  a  fee  simple,  and  not  a 
fee  tail. 

There  was  a  codicil  to  the  above  will, 
as  follows:  "I.,  D.  J.,  make  this 
codicil  to  my  last  will  and  testa- 
ment, that  is,  I  sell  unto  C.  S.  my 
tavern-house  and  lot,  with  one- 
third  of  the  lot  behind  the  barn, 
for  the  sum  of  $6950.  provided  he, 
the  said  C.  S.,  satisfies  my  execu- 
tors as  to  the  payment  of  the 
same."  Held,  that  the  design  of 
the  codicil  was  to  empower  the  ex- 
ecutors to  convey  the  land  whicli 
the  testator  had  agreed  to  sell 
upon  the  payment  by  the  vendee 
of  the  purchase  money. 

It  is  not  competent  for  the  purchaser 
to  show  by  parol  evidence  that 
the  scrivener  who  drew  the  codicil 
made  a  mistake,  and  that  he  was 
to  have  two-thirds  of  the  lot  be- 
hind the  barn.  Jones'  Executors 

.  v.  Jones,  23(i 

9.  When  an  annuity!"  charged    on 
real  estate,  the  rule  is,  thai  it  does 
not  commence  until  the  devisee  of 
such  estate  is  entitled  to  the  pos- 
session thereof. 

This  principle  is  applicable  where  a 
cum  of  money  is  charged  on  land 
in  which  the  testator  had  only  a 
reversion. 

The  lap*e  of  twenty  years  without 
payment  or  allowance  of  principal 
or  interest  of  a  legacy  will  raise  a 
presumption  of  payment,  but  such 
presumption  may  be  overcome  bj 
evidence. 

The  wife's  right  of  dower  will  be 
protected  as  against  post-nuptial 
mortgages  not  executed  bjr  her. 
Hayes  and  wife  v.  \Viiitall,  241 

10.  The  personal  estate  alone  is  lia- 
ble for  the   payment   of  legacies, 


600 


INDEX. 


unless  the  land  is  by  the  will  made! 
chargeable  either  expressly  or  byj 
clear  implication. 

Parol  evidence  of  the  declarations 
of  the  testator  is  not  admissible  to 
show  an  intention  to  charge  lega- 
cies upon  the  land. 

That  the  personal  estate  is  not  suffi- 
cient to  pay  the  legacies  will 'not, 
of  itself,  make  the  land  chargeable. 
Massaker  v.  Massaker,  264 

11.  The  expression  in  a  will  "dying 
without  lawful  issue,"  under  a 
well-settled  rule  of  law,  imported 
an  indefinite  failure  of  issue. 

Personal  property  could  not  be  lim- 
ited over  on  so  remote  a  contin- 
gency, and  consequently  under 
such  a  gift  of  a  personal  chattel 


the  legatee  took  the  absolute  pro- 
perty. 

But  by  the  New  Jersey  statute  of 
March  12th,  1851,  the  words  "dy* 
ing  without  issue"  and  similar  ex- 
pressions are  made  to  denote  a 
definite  failure  of  issue,  so  that  the 
will  of  a  person  dying  since  that 
act  went  into  effect,  thus  limiting 
personal  property,  will  pass  to  the 
legatee  only  a  defeasible  interest, 
which  will  cease  upon  his  dying 
•without  leaving  issue  at  his  death. 

Where  one  legacy  is  given  as  a  mere 
substitute  for  another,  the  substi- 
tuted gift  is  subject  to  the  incidents 
of  the  original  gift,  although  not 
so  expressed  in  the  testamentary 
instrument.  Executors  of  Condict 
\.  King,  375 


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